19 April 2010

Ancillary relieved of the lot?

The Commission on European Family Law held its fourth conference at the end of last week - 8 to 10 April in Cambridge - at which English lawyers were well outnumbered by (mainly) European friends in the law, both academic and in practice. A splendid time was had, both academically and socially, with many important issues on family property being discussed and rather hotly debated (good job, too!) in the sessions (and outside!) and provoked by brain-teasing presentations from experts on both sides of the continental 'pond'. Being outnumbered as the English Family Law contingent was merely added-to by the number of our American cousins and a few from farther afield joining the European family in this two-day event.

There will be a fuller report of the highlights in the Family Law journal and International Family Law journal in due course - watch this space.

The outcome from my perspective was a feeling that 'fog in the channel cutting off the continent' was less amusing than it used to be, and that it really is time to consider very carefully the harmonisation prospects across Europe as a whole, if not because mutual recognition of legal steps is complex. We treasure our common-law perspectives where judges attempt to do justice and be fair with a system many would say is fundamentally flawed by its own flexibility. Living with the lack of a regime that reflects ownership of wealth and intentions after marriage/civil partnership may seem romantic (when you enter into marriage or a civil partnership it's for life, right? - 'cos you're in love which will last forever and ever and ever... and therefore you need no 'marriage contract'). It is not 'romantic' to be mired in argument and bitterness about money and property in the emotional aftermath of divorce. Then it seems very sensible to have considered what you would do with your wealth of whatever size in the increasingly likely event of the breakdown of the legal relationship.

Ruth Deech is reported in this week's Sunday Times (11 April, page 3) as calling for an end to 'gold-digger' divorces whereby those women who have been married for only a short time are able to come away with a sizeable proportion of their former-husband's self-made wealth. It does seem a pretty disgraceful alternative to one's own career-progression. She suggests that only wealth created after the marriage/civil partnership should be taken into account in the event of ancillary relief being required. Certainly, spending more on legal fees that what the wealth is worth divided up seems plain daft - but good sense is not usually high on the agenda when emotions are involved.

The suggestion of the adoption of European style divorce laws requires a bit more than this, though. What about money made and kept because of the partner - how will we be able to keep track of that and ensure there is fairness? There may be cause for legal action in determining what is the nature of that property made during the lifetime of the legally-recognised relationship, and the proportion of wealth that may have been made before the relationship became so recognised, yet only retained because of the assistance offered by the recipient partner after the celebration of the marriage.

It sounds a good idea, but we're not out of the woods yet.

In the aftermath of recent cases (yes, all of them individual in their own way) it is time for our next government to 'take the bull by the horns' and really look at prenuptial contracts. One can look forward to the Law Commission's examination of prenuptial agreements and the response of our next government; we have to do something about our notoriously complex divorce and ancillary relief scheme.  Let's decide once and for all (well, for the next decade or so, at least) whether English family law can adopt the continental approach to wealth division. We might, just might, find in such an approach, less angst and a cleaner legal end, so that all parties can get on with life.

Penny Booth is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

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