Baroness Deech has never been one to mince her words. Recently, she spoke of the urgent need to “clean-up” the divorce process, making it less inflammatory and antagonistic than it currently is.
She is proposing a Divorce (Financial Provision) Bill to improve the process and help children whose future needs may be jeopardised by the waste of parental assets and fighting over money in a separation negotiation.
Sounds lovely doesn’t it? The sentiment is certainly one everyone should get behind and it is a step in the right direction. It is a brilliant idea that would make prenuptial agreements legally binding and give people a degree of certainty over what assets they would walk away from if they split up.
There is a “but” though. And it’s this. Pre-nup all sorted before getting married, legally binding in the event of a divorce – but what if something changes? These agreements are designed to safeguard assets both parties have before they join in matrimony. What about the assets they then accrue during the marriage? Those aren’t included in the agreement so there would still then need to be a negotiation, with the starting assumption a 50/50 split but lots of things to be considered as always.
If a couple has been married for 20 years, there will be lots to consider. They may have a house, bank accounts, savings, pensions etc. There may have been one main breadwinner paying for the bulk of this, but the other party may have given up a career to bring up the children and have lower earning potential going forward. It is still a tricky negotiation, fraught with difficulties and, even with the proposed changes, this could be prickly and lead to additional cost for the couple, cutting into those assets and affecting provision for children.
A way to address this issue would be for the pre-nup to be changed regularly, or even every time there was a change in circumstances. This is not viable really though and if we proposed this, many out there would quite understandably suggest this is just a ploy by divorce lawyers to get more business.
The root of the problem remains the current divorce process that forces couples to apportion blame. Even if you choose unreasonable behaviour as a ground for divorce, you then need to give examples. That is the law. This can be anything from “they never do the washing up” to “snoring” to “they drink too much”. The petitioner has to put something though. A finger of blame must be pointed.
The other party then needs to respond. This inevitably causes animosity and bad feeling all round. This means that, when it comes to negotiating for a settlement, potentially, both parties are in a more disgruntled state they might otherwise be. This leads to more difficult negotiations which can be longer, with both parties less willing to compromise, and needing more time from solicitors. It could potentially lead to time in court to settle it. A no fault divorce is what we really need to get over this fundamental flaw in the system. No finger pointing, no petrol poured on a simmering fire.
I don’t think Baroness Deech’s Bill will get passed. I do think though it is admirable and a step in the right direction and if it gets people talking about and examining the current system, then we are at least on the right road, in my opinion.
Family law solicitor, Birmingham