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One size does not fit all in divorce cases

A bill making its way through parliament has come under severe criticism from the president of the Supreme Court.

The bill in question, the Divorce (Financial Provision) Bill, if approved, will see pre-nuptials and post-nuptial agreements become legally binding where certain conditions have been met.

It would also see that matrimonial property was divided equally and a five year limit imposed on spousal maintenance, except in cases where the spouse would be likely to suffer serious financial hardship.

Introduced by Baroness Deech, the bill has already made its way through the House of Lords and is now before the House of Commons, although no date has been set for its second reading.

Baroness Hale, who has been president of the Supreme Court since September 2017, has questioned what she calls the bills’ “one size fits all” approach.

In her speech entitled ‘What is a 21st Century Family’, Lady Hale also referred to critics of the ‘no fault’ divorce legislation currently making its way through parliament. She commented: “More threatening in my view is Baronesses Deech’s bill, which has made its way through the House of Lords and is now before the commons.

I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking out tailor-made solutions. But I question how one size fits all can possibly meet the justice of the case or fulfil the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes equality between the spouses which is simply not there in many, perhaps most cases.”

David Kirkman, specialist divorce lawyer at Atherton Godfrey, commented: “I could not agree more with Baroness Hale. Baroness Deech’s bill, for all its good intentions, is likely to lead to serious injustice in individual cases. When every set of circumstances is unique, fairness demands a discretionary approach to dividing financial resources. In addition, the particular form of this bill is likely to mean that those experiencing unfair outcomes are more likely to be women than men. Hopefully the legislation will not pass the House of Commons.”

Lady Hale is a strong supporter of divorce law reform. She has also attacked government policy over opposite-sex couples entering into civil partnerships.

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