Tuesday, 25 February 2014

Women and children first ~ Gender neutraility in the family courts ~ Marital property agreements

Update 27th February:  Law Commission Report - Matrimonial property, Needs and Agreements

"Men have every right to feel disillusionment with the family courts system" argues Philippa Dolan in the Law Society Gazette 24th February - Women and Children First.   For years family lawyers have known it to be true: men get a raw deal when they divorce in England and Wales.  Scotland has a different appoach to money in divorce and women rarely get the joint lives order (aka "meal ticket for life") that we still see here.   Also, the prejudice against men is not confined to finance.  There is not a level playing field when it comes to deciding whether children should have their primary homes with their mothers or fathers.

The author of the article bases her views on years of dealing with the family courts, mainly in London.   Our capital city is not the divorce capital of the world for nothing.  Wives with tenuous connection to the city jump through hoops to avail themselves of our wife-friendly judges.  As Boris Johnson said in November 2012: 'I have no shame in saying to the injured spouses of the worlds' billionaires, if you want to take him to the cleaners ... take him to the cleaners in London because London cleaners will be grateful for your business.'

The author notes that our legislation is neutral. 
The Matrimonial Causes Act 1973 section 25 contains an exhaustive yet flexible list of relevant factors when determining financial claims on divorce.   The Children Act 1989 section 1 makes it clear that the court's job is to establish the child's best interests and then to protect them.  Although the legislation is gender neutral, the courts are not.

After the House of Lords decision in White v White 2000 (establishing an equal sharing principle for sharing assets on divorce), wealthy husbands began trying to protect themselves with so-called pre-nuptial agreements.  These were rarely effective here until the Supreme Court case of Radmacher v Granatino 2010 where a very wealthy German heiress succeeded in persuading the court to uphold her marriage contract.

A complex situation arose in Prest v Petrodel 2013.   Here, in the view of the Gazette article, the Supreme Court "were terribly concerned at the prospect of keeping Mrs Prest out of a substantial fortune that had been tied up in corporate structures during the marriage with a view to saving tax.  The author claims that the judges were determined to protect Mrs Prest at the expense of judicial clarity.

On 27th February, the Law Commission is to publish proposals relating to pre nuptial agreements though they would be termed "marital property agreements" and see the Marilyn Stowe blog Law Commission plans prenuptial agreements law 

Of course, it is high profile divorce cases involving the famous or wealthy which make headlines!  Nevertheless, there are certainly cases where parties to any marriage might wish to make a marital property agreement.  One example is where people enter into second (or subsequent) marriages and wish to protect the inheritance rights of the children of their earlier marriage.

Baroness Deech has presented a Bill to provide that only property acquired after marriage be divided on divorce.

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