Divorce laws vary considerably around the world. Very few countries do not permit divorce, such as Malta and the Philippines, although an annulment within the Catholic Church is permitted.
Divorce in England was for centuries only available to rich men. It was only in 1857 that the Matrimonial Causes Act allowed ordinary people to divorce. There were, however, still many restrictions. The big change came in 1969 with the Divorce Reform Act which allowed couples to divorce after they had been separated for two years – or five years if only one of them wanted a divorce. A marriage could be ended if it had irretrievably broken down and neither party any longer had to prove the other’s “guilt”. Financial applications within divorce continued to favour men in that capital awards and maintenance for the less wealthy spouse, usually the woman, were calculated on a needs basis. It was not until the case of White in 1996 that the Court decided that assets should be split more fairly to recognise the contribution of a “homemaker”.
Today to obtain a divorce in England you still have to prove that the marriage has broken down irretrievably. To do that one of five grounds have to be proved, namely adultery, unreasonable behaviour, desertion, separation by consent for a period of two years or separation for a period of five years where no consent is required. It is still a fault system. Many divorce lawyers and judges firmly believe the grounds for divorce in England are antiquated and that the concept of fault needs to be removed. Our divorce laws have not been properly reviewed since the 1960s. The world has moved on since then. There is much to correct in our system. If Malta votes “yes” in the referendum and divorce is introduced the country would do well to take note of England’s mistakes.
When a marriage breaks down the family needs help and advice to resolve all the issues and to enable them to move forward with their lives. In England more counselling and mediators are needed and adequate time should be allowed for couples to resolve their issues whether financial or in respect of their children. More time and resources need to be spent in the early days, before the parties become entrenched in a war of words and recriminations.
In resolving financial issues, the capital that the couple own has to be divided between them. The starting point for the Court in England is an equal division. That starting point, however, can be set aside if one party has, for example, inherited assets or at the time of the marriage had already acquired a substantial amount of wealth. Even in such cases if there is not enough capital, for example to allow the wife to re-house herself and the children, then the inheritance or pre-acquired wealth would have to be used to provide for those needs. There has been much controversy in England over the husband who has created fabulous wealth and who has been ordered to pay a significant proportion of it to their wife. A couple of years ago an insurance man was ordered to pay £48million to his wife. He appealed but lost. It is because of cases like this that London is becoming known as the divorce capital of the world. The Courts here are generous to wives, arguably treating men unfairly. England is certainly out of step with other European countries.
What happens to the ex-husband who is paying maintenance to his wife and she then cohabits. Although he may apply to the Court for the order to be discharged that rarely happens. The maintenance paid may be reduced but frequently the ex-husband still has to pay maintenance even though his ex is cohabiting with another man. Do women need lifelong maintenance? It is too often accepted by judges that wives cannot work even where their children are in secondary school or at boarding school.
How can a wealthy man or woman protect their wealth? Following the Supreme Court decision last autumn Pre Nuptial Agreements are now being accorded greater weight, they are still not binding but provided they are seen as fair there is every chance that parties will now be held to them.
Children are of paramount importance with the Courts doing everything possible to ensure their needs are met, whether those needs are financial or not. The Courts acknowledge that it is essential for children to see the absent parent, usually the father. The right of the child must be upheld. It is in this area in particular where money needs to be spent on helping the parties resolve, in the very initial stages, any concerns or anxieties they may have over the children and their contact with (usually) their father.
We still need to do much in England to deal with cohabiting couples whose relationships break down. The present law dealing with their claims is expensive and cumbersome and needs to be streamlined. Single mothers need to be better protected and the law needs to change. All too often there is the case where a mother has been living with her partner for a long period of time, they have two children and the mother has looked after the home and the children while the father has worked and provided the financial resources. Where the home is owned in the father’s sole name and the mother has made no financial contribution to it then she has no rights to that home. She has the right to be housed together with her children until the children cease education but thereafter, as far as English law is concerned, she has no further need for housing. She has no maintenance claims for herself, only maintenance as needed for the children.
There is never a perfect system. We still have many reforms to make to the English system but we have moved on tremendously over the years and are conscious of where the weaknesses lie and where the money needs to be spent. If Malta votes “yes” the country’s lawmakers can address at the outset those weaknesses so that its law is as fair and equitable as possible and set a standard that other jurisdictions should follow.
Ann Ison is Director Hughes Fowler Carruthers (specialist divorce law firm)