As the dust settles on one of the most recently anticipated judgments in the world of family law, the mainstream press appear to have reacted positively towards a change in the law on prenups which would bring us in line with other European countries.
There are continuing debates about whether reform to our family law system is required. Many call for a change which would allow greater certainty of outcome for people at the start of the divorce process, or even the start of a marriage. But is bringing our family law in line with the rest of Europe really the way to go?
The beauty (and the beast) in the divorce law of England and Wales is that it allows all relevant issues to be considered when determining a fair financial settlement. The process in other European countries can be far more prescriptive; this provides greater certainty for those starting the divorce process but I question whether it ultimately helps achieve a fairer outcome.
The principal consideration in English courts is the welfare of any children. This means that where there is a child whose needs must be met, then those needs will be met from the available resources. This helps to ensure that children do not suffer unnecessarily due to the breakdown of their parents’ marriage.
In the English courts, we are able to argue that a wife aged 50 who has not worked for 25 years should be entitled to a share of her husband’s future income for life, or until her remarriage. During the marriage she may have supported her husband’s career, looked after their five children and the home etc. and we can argue that she should retain the lifestyle she enjoyed during the marriage, if there are the resources to allow it.
We can argue that inherited property (or assets owned before the marriage) should be excluded from any division and retained by the inherited party. However, we accept that these assets will be brought into account if they are needed to meet the needs of the other. This means that if the only way of ensuring both parents can provide a suitable home for their children is to divide inherited assets, then so be it.
We do not penalise one party for the breakdown of the marriage (except in extreme circumstances) but accept that marriages break down – it would be wrong to financially punish one party for the breakdown. Arguments as to ‘who was in the wrong’ are left at home.
There are many other considerations the court takes into account but these are simply some illustrations of the type of argument that can be advanced. Of course, whether a person finds all of these considerations fair, will largely depend on what side of the fence they are on and whether they stand to ‘lose’ or ‘gain’. However, these features of our divorce law are generally considered by practitioners to be of assistance in achieving a ‘fair’ outcome.
A quick look at the law of some other European countries gives us an idea of the alternatives.
Many countries are far more limited than us when it comes to providing future maintenance. In France, a wife would only get maintenance from her ex-husband until her youngest child is three years old. Limits along similar lines are applied in Greece, Cyprus, Estonia, and Germany. In Sweden, maintenance will only be awarded for a period of retraining whilst in Belgium, remarriage does not automatically stop maintenance.
In many European countries, blame for the breakdown of the marriage is still considered relevant when considering the finances. In Poland and Austria, the party blamed for the breakdown of the marriage has to support the other party financially (with no consideration of the effect this may have on any children or of the financial positions of the two parties).
In many countries, inherited property will never be divided even if this results in an ‘unfair’ outcome.
In reality, I am not altogether convinced that the judgment in Radmacher really goes as far as has been suggested in aligning the law on prenups in England and Wales with the rest of Europe. Although the prenup in Radmacher was upheld, this was because it was the right thing to do in all of the circumstances of the case. Had the case been heard in Germany, the prenup would have been upheld regardless of whether this would cause manifest unfairness, whereas the English courts have retained the ability to depart from the terms of any prenup if it would be unfair not to do so.
There may be flaws in our system and people going through divorces may find themselves struggling to understand how fairness fits in to the settlement ordered in their particular case. For me however, it is important that the courts retain the wide discretion they currently enjoy considering financial settlements, even if this does make it impossible to provide certainty at the outset of the case.
Reforms to our system may well be required but this does not mean that Europe is the best place to look for a better model. We were not pleased when we were told a ‘pound of spring onions’ must be referred to as ‘half a kilo of salad onions’ – we have disagreed with Europe on so many issues, so why do we think they have got divorce law right?
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