Many readers will no doubt have seen one of the myriad articles in the news recently reporting on a lecture given by Baroness Deech, chair of the Bar Standards Board, calling for a reform of the divorce laws.  Baroness Deech gave a speech deploring the current state of the law which she says puts across the message that marrying a wealthy man is an alternative to having a career.  She spoke of the notion of an equal division of assets even in a short, childless marriage being not what parliament had originally intended and having been developed over the years by the Courts.  It is an approach that has often led England to being described as the divorce capital of the world.

Baroness Deech refers to several high profile cases to support her argument, including the award of over £24 million to Heather Mills following her divorce from Paul McCartney last year after just four years of marriage.  Reference is also made to the 3 year childless marriage of Mr and Mrs Miller which resulted in an award of £5 million to Mrs Miller, although in both these cases these payouts were by no means half of the total assets.  Baroness Deech also holds strong views about ongoing maintenance payments from one spouse to the other.

The current law as to the division of assets on divorce is governed by the Matrimonial Causes Act 1973 which gives judges a wide discretion as to how to divide the matrimonial assets.  Baroness Deech calls for an end to that discretion as it leads to uncertainty.  Indeed, this discretion has also led to recent reports in the press that the Courts in different areas of the UK approach matters differently and that northern Courts are more generous to husbands.

Whilst Baroness Deech’s comments have attracted a lot of attention, the cases that she is referring to are far from the norm.  The multi-millionaires facing large payouts are a long way from the many cases where the total assets are barely enough to meet both spouses’ needs.  The discretion retained by the Courts is extremely important as it ensures that the individual facts of each case are fully taken into account.

But what if you want to avoid the uncertainty of Court proceedings, or wish to enter into an agreement yourselves providing for what should happen in the event of the breakdown of the marriage?  Baroness Deech has called for a recognition of the autonomy of such agreements, and case law has evolved considerably already in this area.

The relevance of pre-nuptial agreements has historically been subject to much debate, with the starting point being that such agreements that purport to bind the hands of the Court in the event of the breakdown of a relationship are not strictly enforceable in this country.   This is in contrast with the position in many other parts of the world, including several other countries in Europe.  It has become increasingly clear that these agreements will be given regard to by the Court in determining the financial settlement.  In the recent case of Radamacher v Granatino the Court was clear that it was necessary to give proper weight to the pre-nuptial agreement.  Although a pre-nuptial agreement is still not technically binding on the Court, it is clear that judicial discretion allows such agreements to be treated as decisive.

An option available to separating couples trying to reach a settlement is Collaborative law.  Entering into the collaborative process avoids the adversarial, potentially destructive and frequently unpredictable nature of Court proceedings, giving the couple control over their own divorce rather than handing the process over to a judge. 

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