UK divorce law is stuck in the past
The Law Commission has recently issued a review of financial provision on divorce. It outlines the serious problems in this area but unfortunately concludes by giving the government a choice between four reform options rather than plumping for one – hence, it is likely to be kicked into the long grass.
I started thinking about reform in the 1970s and I only hope to live to see it completed! In 1977 I commented that this area of the law had not actually been fundamentally revised since 1857. Financial provision law has been left behind by social developments and has not been reconsidered thoroughly for a century and a half. The law of 1857 was based on a wife being dependent on a man for the whole of her life, father then husband. She had little education, legal capacity, or ability to self-support. There was no reliable contraception and her husband controlled her property. None of this could change regardless of what happened to the marriage.
As we all know, the legal and social situation of women has changed out of all recognition. Half of university students are female; workforce participation is 72%, a lot of it part time. We have equality laws. Childcare is outrageously expensive, but not all women are affected by that, and other countries have the same problem.
Nevertheless, English law still assumes female dependency, and now that we have "no fault" divorce there is still no rationale to explain why one spouse should continue to support the other after divorce has ended their spousal relationship, though not their parental one. There is no point in introducing "no fault" divorce, with the aim of removing bitterness and deception, if the same elements, writ large, dominate financial provision law.
There is no sympathy in our financial provision law for single women who, having failed to be attached to a man as his wife, or as his mistress, and thus able to claim support after his death, are left to fend on their own, with the same problems of equal pay and childcare as married women. It is hard to understand why our law still after 150 years gives women support only if they adhere to a particular man, and of course only if he can afford it. Child maintenance gets short shrift, whether by the court or the state. Scotland, New Zealand, and other countries present a model for reform: an equal split of assets and pension on divorce, short term maintenance for spouses with no children, generous maintenance for children up to 21 and their carer.
The lack of certainty in the law is a huge problem, coupled with the removal of legal aid, and the parties' ignorance of the law, especially those who are self-representing. The law remains uncertain over equality of division of assets, post-separation earnings, conduct, premarital cohabitation, prenups and other issues. This gives rise to great expense and there are cases where up to three quarters of a couple’s assets, if not more, go in legal costs. We should not be proud of the fact that Mrs Oligarchs choose English jurisdiction with the aim of getting the most generous settlements.
I want to see women treated as equal partners on divorce, not as supplicants or dismissed servants. Social surveys show that very few women get anything worthwhile by way of maintenance. The complicated expensive system gives rise to precious little except to the wealthiest and to the lawyers. I want to see divorcing couples given a firm basis for the usual division of assets, with the aid of assisting negotiation and making the best of digital resources.
Judicial discretion is now so unpredictable that it amounts to a breach of the rule of law, which requires predictability and access to justice. Above all I want to see an end to the demeaning situation adopted in English law, almost alone in first world countries, that the status of the woman is forever determined by the man she marries but not vice versa. Simone de Beauvoir captured this when she wrote in 1949 “man defines woman not in herself but as relative to him… she is defined and differentiated with reference to men… women live… attached through residence, housework, economic condition and social standing to certain men.” Financial provision must cease to be rooted in this framework and must come into line with the rest of the modern world.
Baroness Ruth Deech DBE is Chair of the House of Lords Appointment Commission and a crossbench peer. A former Principal of St Anne’s College, Oxford, she has held key roles in legal and regulatory bodies, including the Bar Standards Board and the Human Fertilisation and Embryology Authority.
