As a smoker now banished outside like some naughty child, I have recently become acutely aware of the 'nanny state' in which we now live. I've now caught up with some of my missed reading from last week when I was on holiday, and was interested to read the Comment column in the Gazette, which suggests that such treatment of mature adults extends to divorce settlements.
In the column Damian Baron, head of family law at Napthens in Preston, refers to the recent Charman decision and berates the fact that the law will not enforce pre-nuptial agreements, with the result that wealthy individuals are discouraged from getting married. He says: "Should the law not now allow intelligent human beings with quality legal advice to agree the regulation of financial provision in the event of a break-up?"
Unfortunately for my fee income, I do not have any clients with the sort of wealth of Mr Charman, but I have seen a similar scenario of the courts saying "we know best", even where the parties are quite happy to sort things out their own way. The scenario to which I refer relates to consent orders, where the parties have agreed a financial/property settlement on divorce, but need the order to be made, to ensure the settlement is final. However, the court will only make the order if it considers that its terms are broadly reasonable in the circumstances, with the result that some orders are refused, even where both parties are in full agreement and fully understand their positions, having taken independent legal advice. The parties are then left in a limbo, with no 'closure' to the matter. Surely, if the judge makes it quite clear that he/she considers the settlement to be unfair, and the parties still give their written consent having taken (or had the opportunity to take) independent legal advice, then they should be treated as mature adults and be allowed to proceed as they wish?