Divorce reform could end the right to equal share of assets
COuPLES who split up may have to divide their assets according to a ‘divorce formula’, legal reformers suggested yesterday.
The proposal being mooted by the Law Commission would end the long- standing presumption that former spouses share the proceeds of their marriage equally.
Instead, a divorcing husband or wife could be allowed to keep all the property and cash they owned before their marriage. The recommendations follow the Commission’s recent consultation on pre-nuptial arrangements.
The reforms are aimed at reducing the acrimony between warring couples and the huge amounts of money wasted on lawyers and court hearings.
But some critics said they could cut the amount a divorced woman might expect to get from her husband. The Law Commissioner in charge of reforming divorce law, Professor Elizabeth Cooke, said the organisation is ‘looking at the boundaries of the sharing principle’ and considering what a couple might not share when they break up.
She added: ‘ These are technically difficult questions. They are also very emotional questions because they are important to people at an incredibly difficult time in their lives.
‘The way people respond to them depends upon their own beliefs about marriage and about commitment and responsibility.
‘Most people who have to deal with these questions in practice agree that the current law is inadequate.’
Professor Cooke said that a divorce or civil partnership breakup was a miserable experience for the couple and their children. ‘The law can make that misery worse if it is not fair, clear and accessible, by contributing to acrimony and wasted costs.
‘It would be far clearer if the law was to state what is to be achieved. Is it trying to compensate people for what they have lost as a result of the marriage, for example, earning capacity? Is it trying to move away from what might have been and to think about how long it will take for them to achieve independence?
‘We won’t be sharing any more’
‘And how far should the law be incentivising independence, trying to encourage people to move on?’
The Commission has already run a consultation deal about prenups, documents drawn up by a couple in advance of their wedding which set out how their assets are to be divided in the event of divorce.
Two new consultations will now cover how far a husband or wife should cover the needs of their former spouse after divorce, and what happens to assets that one party had before the marriage.
The Law Commission will produce a set of recommendations on new laws for the Government next year.
But author and researcher on the family, Patricia Morgan said the plan would ‘devalue’ marriage. ‘We have already dismantled the connection between parenting and marriage.
‘Now we are taking mutual help and interdependence away. We won’t be sharing any more.’ She added: ‘There is an assumption here that marriage is a transient union and not a lifelong one.’
Andrew Newbury of the law firm Pannone said the number of prenups taken out has quadrupled since a 2010 Supreme Court ruling that allowed heiress Katrin Radmacher to keep the greatest share of her £100million fortune.
‘If the Law Commission proposes that the Government enshrines that position in law, it will only fuel what we have seen in the last 18 months or so – an increase in prenups being taken out by those seeking to protect their wealth.’