Tuesday, September 15, 2009

Baroness Deech: Reactionary

With reference to my post yesterday, I've since read an edited extract of Baroness Deech's Gresham College lecture in the Guardian, and I now have the following further comments to make upon what she says:

"The divorce courts are still trying to put women in the position they would have been in had the marriage not ended" - I sincerely hope not. It is correct that, as originally drafted, s.25 of the Matrimonial Causes Act required the courts to exercise their powers so as to place the parties (so far as practicable) in the financial position in which they would have been had the marriage not broken down. However, that requirement was removed by the Matrimonial and Family Proceedings Act 1984.

"maintenance laws cushion and legitimise the attitudes of employers who discriminate against women, because they are aware of the "meal ticket for life" mentality" - Sorry, but I just don't buy that. Employers may discriminate against women, but I don't think that they give a moment's thought to the fact that if a woman gets divorced she may get a "meal ticket for life", which she will not anyway.

"some certainty about the way to split assets may be more important than total fairness" - As I indicated yesterday, I agree that there should be more certainty, but I'm not sure that this must be at the expense of fairness.

She then goes on to suggest that perhaps there should be one law for the rich and one for the poor, a slippery slope that the law has (quite rightly, in my opinion) always attempted to avoid.

"The notion that a wife should get half of the joint assets of a couple after even a short childless marriage" - I commented on this yesterday, with reference to the Miller case. I don't see that there is any such notion - certainly, that was not the result in Miller, as Baroness Deech herself makes clear.

She then makes some useful suggestions regarding the definition of 'matrimonial property', which I hope that one day parliament will find time to consider, in between passing more of the daft laws that take up so much of its time these days.

Finally, however, we come to the crux of Baroness Deech's conservative and reactionary agenda when she lets slip the following: "If we had a divorce system based on misconduct, then it would be easy to find a rationale pinned to guilt and innocence, but that is unlikely to be the case ever again." It seems clear to me that this is what Baroness Deech is really hankering after: a return to the bad old days of conduct directly affecting entitlement. Thankfully, she is right in one thing: that is unlikely to be the case ever again, or at least I hope it is.

1 comment:

  1. Well, if conduct in a marriage doesn't mean anything, then I am not sure marriage means anything. So we end up with people writing their own (prenups) contracts (if they marry) I suppose. Keep you lawyers busy (or not as the rate of 1st marriages falls) I suppose.

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