Divorce or the termination of a civil union is always a very sad experience. In the United Kingdom, where there is no such thing as a “no fault” divorce, nor any concept of simple “irreconcilable differences” (a lovely term only the Americans could have devised), divorces are often unnecessarily caustic and combative because most petitioners choose what is perceived as the quickest and least complex grounds: Unreasonable behaviour. Ask any solicitor and they will have plenty of stories of strange reasons offered for a divorce petition: Bad cooking, being forced to watch television programs the petitioner did not enjoy, overly flirtatious behaviour by a spouse. The annals of divorce are filled with incredible examples of so-called “unreasonable behaviour”.
The most unreasonable behaviour, however, is often laid at the feet of the judges dealing with these cases, usually in the arena of asset division and support. The problem, as the Law Commission recently acknowledged, lies in the laws as written. While they give the judges great authority and very precise powers to make financial decisions in divorce cases, they give almost no guidance as to what, exactly, a judge should be seeking to achieve with such orders. As the nature of marriage becomes more complex with partners bringing assets, income, and property into a union on an increasingly equal basis, the decision to award one party support or a larger share of communal property is no longer a simple equation – time put into a union against lost income – or any similarly simplistic comparison.
While the prenuptial agreement has become more and more popular – and gained credence in the courts as long as they are properly prepared and executed without duress – they remain largely a tool of the wealthy, leaving plenty of divorces where there are considerable assets but no prenup to fall back on when the union is dissolved. The prenuptial agreement also suffers from the perception of doubt about the marriage – after all, if you have decided to be with a person forever, why would you need a contract spelling out the financials of a divorce?
This means judges continue to decide financial division in divorce cases with very little by way of legal guidelines. Most people agree that such guidelines are necessary – the judges already have the power to make arrangements for both parties in a divorce, but they need to be able to ascertain what the goals of those arrangements should be. Should they be used to encourage independence from each other even if one spouse has been financially dependent on the other for a long period of time? Should they be used to guarantee a spouse’s lifestyle post-divorce indefinitely? A combination of both? The argument can be made that if asset division and support orders are designed to keep up one spouse’s lifestyle, there will be little or no reason for them to ever seek financial independence from their former partner, creating an unfair burden to the latter. Scots law dictates a three-year limit on such support post-divorce, but most in England and Wales regard that term as too rigid and brief. Some go so far as to consider the Scots Three Year Rule to be anti-woman, but that’s an outdated concept. Women in the modern age often bring just as many assets to a marriage or union as their male counterparts.
Happily, the Law Commission seems determined to revise the law appropriately. This will take some time; after officially launching a consultation on reforming divorce law (which has remained largely unchanged since the liberalizations of 1969), the Commission won’t publish recommendations until the autumn of 2013. However long it takes, this reform is most welcome – by judges, solicitors, and petitioners alike.
Mark Darcey is the owner and director of an independently owned commercial debt recovery company based in the UK.