David Hodson on International Family Law: The Law Commission speaks to England and Wales - and to the world
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Sep 14, 2012, 10:42 AM
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On Tuesday, 11 September 2012, the English Law Commission produced a consultation paper likely to lead to fundamental reform of financial outcomes on divorce in England and Wales. But although directed to English law in English courts with legislation from the UK Parliament, it has huge significance for family law worldwide. In our separate sovereign jurisdictions, we are no longer islands. Our clients are international families from around the world. Our laws take account of foreign law and trends. International laws from the EU and The Hague are directly imposed onto our national laws. Reforms in one country follow experiences of reforms in other countries and in turn lead to reforms in other jurisdictions.
The Royal Commission in 1912, A P Herbert's Private Members Bill in 1937 and the gender equalising legislation of 1969 were based on purely national trends, surveys and public expectations. Now 100 years on from the Royal Commission on Divorce and Matrimonial Causes, probably then England's first radical consideration of divorce matters, the Law Commission has decidedly not confined itself to these shores. They have looked at observations and studies of Prof Patrick Parkinson of Sydney and of Ira Ellman with his Theory of Alimony first published in the California Law Review in 1989. They have directly looked at equivalent laws in New Zealand, Sweden, France and the Netherlands, Scotland, California and Canada. They have looked at the benefits of the American Law Institute Principles of the Law of Family Dissolution and the Canadian Spousal Support Advisory Guidelines. They have taken account of the expectation of international families regarding marital agreements.
So this reform consultation borrows, benefits from and plunders the resources of our family law world; academic, legislative, demographic, judicial and empirical. Of course it is laid upon English national values, traditions and marital expectations. This is emphasised in several places in the consultation paper. But England is already incredibly multicultural, and these values etc are very different from what might have been expressed by the equivalent Commission in 1912.
Moreover in setting out general principles to embody the values, para 4.23, they have done so in a way with which Napoleon Bonaparte would have been happy in his original preparation of what became in 1807 the Napoleonic code, probably the most widespread system of law across the international family law world. But it is some distance from the unfettered discretion of individualised justice, as has hitherto distinguished England as the home of common law. We may revolt against some of the approaches which the EU would seek in family law to impose upon the UK, but we are very conscious that we are Europeans.
In essence the task of the Law Commission is to look at marital agreements, needs and the treatment of non-marital property. Decidedly left out and unaffected is the expectation that marital property will be divided equally, unless fairness requires any other outcome. This other outcome will almost always be needs-based.
In respect of marital agreements, there is a seismic fault line across the world. On one side are countries which require stringent qualifying conditions before they can be binding, eg Australia and some US states. On the other side are countries which care nothing about the lack of disclosure, of any advice or any understanding of the implications, as found in many continental European countries. For a country like England coming late and new to marital agreements, where do we pitch our tent to avoid unnecessary burdens yet unfair duress? We look around the world to find our national solutions for our national and international families. The Law Commission consults but hints towards some qualifying conditions, and more than presently required by case law, but perhaps not to cover provision for needs. If this becomes law, it will undoubtedly have a normative effect in some jurisdictions and set us strongly against others, including the EU. Given the importance of overcoming gender duress, inherent often in marital agreements, then this is an appropriate and right place for us
But if marital agreements do not bind needs, what are needs? This is a fundamental part of the consultation. England is almost entirely a needs driven jurisdiction. Outcomes are invariably needs-based. But how do we decide "needs"? Compensation? Relationship generated disadvantage? The standard of living of the marriage or a more basic level? Emphasising towards self-sufficiency? Lifelong or limited in time? Formulaic and certain or unfettered discretion? And what about the needs arising from parenting and childcare? How a country ascertains and deals with the principles for meeting needs says much about the status and respect in that country to marriage. There seems little doubt that England's unfettered discretion, almost existential approach, is nearing its end. England is one of a few countries still without more fixed guidance and clear principles. But how far along the more certain, perhaps even formulaic, path do we want to walk and how quickly do we want to get to that new law?
If needs cannot be met from one half of the marital assets, in what circumstances should non-marital assets be used to provide for the spouse with needs? Moreover, when and how do non-marital assets, invariably premarital, inherited and gifts, become marital and therefore become the subject of equal sharing? This is perhaps where countries have been engaging in reforms most significantly in the past decade or so, with varying degrees of success. This is still pretty new territory for us in England. Only 15 years or so ago, non-marital assets were relatively rarely distinguished from marital. We now need to see what has happened with reforms elsewhere in the world. Other countries will watch cautiously at whatever new laws we introduce.
So this excellent consultation paper from the Law Commission is for reform of the law of England and Wales. But it speaks from the resources of the world. And it speaks to the world. With our increasingly homogenous societies, the issues of the consultation paper are those facing many international families across the world and many jurisdictions seeking fair laws for fair outcomes.
And where eventually will it lead? Some organisations like the EU Civil Justice Unit would seek to impose solutions and legislation based on one preferred approach. Ultimately this will not succeed. I believe one answer is likely to be a gathering international consensus of what is fair and reasonable for marriages, recognising equality of genders although different gender roles and recognising respect for commitments and sacrifices made to the relationship either in itself or in parenting. This gathering international consensus may well produce, from the ground upwards, an expectation of what are fair outcomes. The English Law Commission consultation paper of September 2012, bedded in that gathering international consensus and expounding it with principles and policies, has almost certainly taken forward this momentum.
It may well be exactly 100 years ago from the first radical reform proposals for divorce law. I believe it may not be much more than another 10 years or so for recognition of a gathering international consensus to occur. I expect these present reform proposals, considered across the world by jurisdictions, jurists and politicians, will significantly contribute to that recognition
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.