Monday, September 14, 2009

Marriage is a joint venture... ?

I see that Baroness Deech is at it again. Having put the knife in to any prospect of a decent law protecting cohabitees for the foreseeable future, now she's having a go at the ancillary relief system, claiming that it is unfair towards husbands, according to a report in The Times today.

Now, I'm not going to go out of my way to defend the system, as I do have a number of reservations about it, particularly its uncertainty, but I do take issue with some of the points mentioned in the report, and have comments to make on others:

"multimillion-pound awards are degrading to women" - Really? I wonder if Beverley Charman felt degraded when she received her £48 million - I rather suspect that her feelings were more akin to vindication, i.e. getting just what she was entitled to.

"Baroness Deech is calling for an end to the idea that women deserve half of their husbands’ wealth on divorce" - I'll ignore the gender bias, as I presume Baroness Deech believes that men similarly do not deserve half of their wives' wealth. However, I'm not sure on what basis Baroness Deech claims that there is such an idea as equal sharing - White v White established equality as a yardstick against which to compare any proposed settlement, not a starting-point.

"The notion that a wife should get half of the joint assets of a couple after even a short, childless marriage has crept up on us without any parliamentary legislation to this effect" - Presumably, this is a reference to Miller, but Mrs Miller did not receive half of the joint assets, or anything like it.

"judicial discretion on what can be awarded should end" - And be replaced by what? I've always found it extremely difficult to envisage a non-discretionary system that will be able to achieve fairness in all cases (not that I'm saying that the present system does, but at least it has the potential to do so).

"maintenance [should end] where a woman cohabits rather than remarries" - I might be prepared to agree with this, provided that there was some sort of safeguard to ensure that the cohabitation was of a 'permanent' nature, such as a six-month requirement.

"no maintenance should be paid at all unless the spouse cannot work or has young children to care for" - It is a fact that many women give up work to bring up the family. As such, they are obviously disadvantaged in the labour market. I do not want a return to the 'meal ticket for life', but surely it is only right that, in appropriate circumstances, they receive maintenance for a temporary period to enable them to re-establish their financial independence?

"Only assets acquired after a marriage would be divided, but with no division at all in the case of marriages of three years or less" - I'm probably with Baroness Deech on the first part of this (although absolute rules make me nervous), but the second part would lead to absurd pressures as marriages reach the three-year mark, with (say,) husbands rushing off to court to issue divorce proceedings before their third anniversary.

"Lady Deech also takes a swipe at the idea that women deserve half the assets because they have given up a career"- Again, I'm not aware of any rule to this effect. However, if a lucrative career has been given up, then surely that is a factor that should be taken into account?

In short, Baroness Deech seems to me to be giving far too much weight to 'breadwinning', as if it were somehow more important (and therefore more valued) than looking after the home and bringing up the family. If one party (and it is more often the husband) is fortunate enough to have a high income then why should the law say that their contribution is greater than that of the other spouse who stayed at home and looked after the children? Isn't it offensive to wives and mothers to devalue their efforts purely because those efforts brought no financial reward (although they did, of course, save enormous expense in childminding, cleaning, cooking etc, etc.). After all, marriage is a joint venture, isn't it?

2 comments:

  1. I fully agree with Baroness Deech on a number of points:
    (1) Only post-marriage assets should be divided. Whether family lawyers like it or not, Marriage legally is a contract. Courts willingness to deviate into pre-marital assets is wrong, pure and simple. It doesn't happen in Scotland and in many other judiciaries, so why does it continue in England ?
    (2) Spousal maintenance in the vast majority of current day divorces is also wrong. This stems from hitherto days where most notable the woman did not work, or indeed never worked. It has no place in the vast majority of current day family units which are divorcing. Both parties, post-divorce have to get off their 'back-sides' and survive independently and financially, otherwise 'Divorce' has not properly and legally brought the marriage contract to a close !
    (3) Child maintenance where needed should be properly and equitably ascribed on the basis of the split or subdivision between parents regarding the residence and care provision to offspring, with each parent fully responsible during their respective period. Only where there is an unequal subdivision in residence & care provision, should any child maintenance requirement per se arise.

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  2. 1. It is not a question of whether family lawyers like it or not - they do not make the law. In fact, in England it is quite possible to take into account assets that parties brought into the marriage, under the heading 'contributions'. The problem arises when those assets become mixed with other assets, particularly in longer marriages.

    2. Spousal maintenance is actually quite rare nowadays, and when an order is made it is usually for a limited period, to allow that spouse to regain their financial independence. The court does, of course, have a duty to consider in all cases whether a clean break is appropriate.

    3. The child support formula does take into account time spent with each parent, as the amount is reduced for each night spent with the non -resident parent. Having said that, the formula is far from perfect.

    ReplyDelete

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