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Divorce law reform - equality or equity?

View profile for Philip Hoddell
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Many people are aware that the government intends to introduce ‘no fault’ divorce. This is with the stated aim of reducing the acrimony that can sometimes accompany marriage breakdown.

However, what some people may not know is that Crossbench Peer, Baroness Deech, is currently attempting to also amend the law when it comes to dividing assets, pension and income following divorce. But would the amendments give us more equality or more fairness?

A noted academic lawyer, Baroness Deech introduced her bill into the House of Lords where she sits. She proposes:

  • That prenuptial agreements would be binding as a matter of law. At the moment they are influential but the ultimate decision rests with the judge.
  • The introduction of the presumption that matrimonial property will always be divided equally.
  • That spousal maintenance will be limited to a maximum of 5 years of payments (unless it would cause “serious financial hardship”).

The proposals have been criticised by the UK’s most senior lawyer, the Right Honourable Lady Justice Hale. She is the current President of the Supreme Court and has described the bill as a threat to the stability of marriage.

Lady Hale calls into question, rightly in my view, how a one size fits all solution can possibly meet all of the different types of cases that the court has to consider on divorce.

Lady Hale is right. Anything which fetters the discretion of a judge risks damaging the ultimate search for fairness. Fairness sits at the heart of our current rules on asset division following divorce. Restricting the choices a judge can make sacrifices fairness for equality and, in this case, the two are definitely not the same thing.

I doubt that Baroness Deech’s bill will become law. There are far more people who support Lady Hale’s point of view.

Our divorce and separation lawyers can help if you have questions about how finances are decided when ending a relationship. Call our expert team for a free, no obligation, 15 minute chat. I am a divorce lawyer based in our Colchester office and can be contacted on 01206 217320 or philip.hoddell@birkettlong.co.uk.  

Image: Interaction Institute for Social Change Artist: Angus Maguire.

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