Time to modernise the law around divorce proceedings in England - Mark Heppinstall

The social landscape in 1973 was completely different to what it is now. In 1973, the vast majority of women did not go back to work when their children were born and divorce itself was still not common.

Over the years judges have tried to work within the framework of the statute to adapt it to suit the times, including the seminal decision of White and White in 2000 where the principle of having a starting place of equal sharing of assets and the ‘yardstick of equality’ was brought into play and there have been some legislative changes including the introduction of the ability to share pension in 1999 along the way too.

But the bottom line is that we still have a set of rules (as opposed to principles) which are 50 years old and which give the judge huge amounts of discretion in how they are going to decide a case which comes before them.

One of the most common complaints is that you can put the same set of facts before five different judges and get five different answers and the answers are likely to be very different if the judges were based in say London, Bristol, Leeds and Nottingham, so that people faced with having to resolve financial issues on divorce have absolutely no certainty on what the outcome is likely to be for them. This simply means that an already difficult situation has the opportunity of becoming more and not less stressful and toxic.

To an extent this uncertainty can be taken away if there is a prenuptial agreement in place, providing such an agreement is deemed to be fair, but prenuptial agreements do not yet have the status of a binding agreement in law in England and Wales although the likelihood of parties being held to what they agreed before they married is much stronger since the landmark case of Radmacher v Granatino in 2010. However, most people who married before 2010 are unlikely to have a prenuptial agreement in place and of those who married post 2010 most are still unlikely to have thought of having one except where there is significant unmatched family wealth on one side or where the marriage is a second one for at least one of the parties.

For practitioners, the current law makes it very hard to be able to give clients any clear advice on what the likely outcome of a financial dispute will be. Even where parties want to make use of mediation or other alternatives to court, that certainty is lacking as mediators will still be working within the framework of the 1973 Act.

The proposed review is to be welcomed if the outcome of it is that a modern approach to sharing of assets built up by a family during their marriage is put in place which recognises the contributions of each of them and gives them a degree of certainty in terms of what the outcome is likely to be if a judge were to decide that, as well as dealing with what sort of maintenance payments should be paid by whom and for how long.

Mark Heppinstall is family law director at Freeths Leeds.