27 April 2015

The inside track on family law

With Spring in the air, change is afoot in family law. 

A new equality

In what could herald a new era for equality, judicial attitudes towards ongoing spousal maintenance are hardening.  Until recently, the financially stronger party was often ordered to support his or her former spouse and often for life.  This is slowly changing. 

Baroness Deech's Divorce (Financial Provision) Bill is being debated in the House of Lords, which recommends a number of reforms to divorce laws, including that pre and post nuptial agreements become binding and that spousal maintenance lasts no longer than three years.

She notes, ''Lots of young women these days are working, earning well and would feel it extremely unfair if a young man who they marry and perhaps leaves them is going to take with him a sizeable chunk of what they have worked so hard for."

The modern way

At a time when there are calls for greater equality for women, many consider it an anathema to continue to support a former spouse and gender discriminatory. 

There is a sense of a more level playing field between men and women, both as earners and as parents.  This chimes with the introduction of a law that enables couples living in mainland Britain to divide traditional maternity leave entitlement between them following the birth or adoption of a child. 

Maintenance pending change

The courts are reflecting this change of mood. The recent case of Wright saw a millionaire horse surgeon successfully terminate his ongoing financial obligations to his ex wife.  The judge told his former wife that she could not expect to be supported for life and she should "get on with it" and get a job, as millions of women do.

Another recent case saw a judge imposing spousal maintenance for a fixed term, rather than for life, whilst noting that no longer could a spouse in receipt of ongoing maintenance expect to receive maintenance at a level equivalent to the lifestyle they lived as a couple, if unaffordable.

Shona Alexander, head of the Family team, said "This new progressive approach by the courts shows an increased recognition of today's modern society and an individual's autonomy which is reflected in the rise of pre and post nuptial agreements, mediation and negotiated settlements."

Tough love?

The courts are still protective of the vulnerable however, as demonstrated by the recent case in which a wife was entitled to bring a claim against a husband she divorced 30 years ago.

Ann Northover, partner in Forsters Family team, noted: "What is exciting about the recent cases is the sense that what is considered "fair" is changing.  Fairness may now mean divorcing couples have a greater independence from one another, but it is important to remember that fairness must be to both parties.  Ongoing financial support will continue to be appropriate and necessary in certain cases so individuals should not worry that they will be left financially destitute.''

Navigating the seas of relationship breakdown

Couples whose marital relationship has come to an end can be forgiven for feeling they are adrift on a sea of uncertainty and face lengthy court proceedings before reaching shore again!  However, increasingly, couples can take matters into their own hands and steer their own course by taking steps such as marital agreements (both pre and post marriage) and engaging in mediation and private arbitrations.  The options are there for the appropriate individual approach to be taken.  At an emotionally turbulent and legally uncertain time, anything that encourages couples to feel as though they can be masters of their own destiny can give enormous comfort.

For more information please contact:

Shona Alexander, partner

+44 207 863 8539

[email protected]

 

Amanda Sandys, solicitor

+44 207 399 4755

[email protected]

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