It is extraordinary that English divorce law has discouraged independence and autonomy for as long as it has. Individuals remain unable to set the agenda for their financial lives pursuant to separation. For example, they cannot:
- enter arrangements which set out their wishes in the event of separation;
- On separation they are not able to agree privately, without the involvement of lawyer or written evidence, their financial arrangements; and
- Most controversially, they have not been encouraged to break the financial ties between them, unless there has been sufficient money to buy out the claim by way of clean break.
Much has been written individually on the cases which have addressed these issues and it is not helpful to reiterate that commentary, but for completeness, the references are to the recent cases of:
- Wright (the case which gave the press the headline ‘Ex wife told to stop sponging off millionaire and get a job’);
- Wyatt v Vince (the controversial decision to allow a wife’s claim to be heard over 20 years after separation); and
- Hopkins (a decision about the enforceability of post nuptial agreements).
These cases have addressed each of the issues and attracted significant publicity.
The public reactions can be found across the media, including most interestingly, the commentary to online articles. It is in those comments we find public opinion on a subject which is usually only aired between divorce professionals.
Opinions are strong and often steeped in personal experience which above anything, remind us how many people are impacted by the law in this area in one way or another. They may be divorced themselves, be the children of divorced or separated parents or supported friends and relatives through a divorce. This explains the public interest but also why the views of the public cannot be dismissed or ignored.
That opinion is overwhelmingly supportive of decisions which encourage autonomy and independence.
Surprisingly both left and right wing commentary is supportive of women returning to the workforce having had children. Viv Groskop of the Guardian wrote an article entitled ‘A judge telling a divorcee to get a job is a triumph for women’s rights’ and Linda Kelsey writing in the Telegraph wrote an article ‘Tracey Wright should get a job. I’m grateful I did’.
Although they approach the issues from different positions both articles support women making choices which give them freedom and self-respect.
The comment section to the articles are full of animated responses some of which become personal. This is utterly in keeping with commentary which addresses the working mother/stay at home mother issues across social media – those unfamiliar can see countless fights on the topic on websites like mumsnet.
In the case of the Guardian’s article, the comments run to 15 pages.
There is a sense, however, that whatever the family decision is about work and life, it is a decision for the family and the family should be free to arrange their affairs as they wish. The decision in Wright takes that position and says that since the agreement to remain a family has broken down, so too has the decision that one party will support the other, and where reasonable, both parties should do their best to support themselves. Where working lives often go onto the age of 70, this does not seem an controversial decision, but of course it is.
This brings us rather neatly to nuptial agreements.
If the public support families being entitled to run their financial arrangements freely, it must be equally supportive of families being free to enter arrangements legally, setting out what will happen in the event the marriage breaks down.
The reaction to cases relating to the enforcement or otherwise of nuptial agreements is less feverish, perhaps because the public remain confused about their legal status. Certainly it is the question most commonly and quickly raised in any seminar given to those outside the profession.
We do not yet have the legislation needed to provide clear and consistent advice to families about whether they can and should enter into a nuptial agreement and what is required of them if they wish to. Without wishing to enrage, it is simply not good enough.
The decision in Wyatt v Vince attracted over 580 comments on the Daily Mail website and 797 on the Guardian. The overwhelming public response has been one of outrage that 20 years after separation, it is apparently possible to obtain a financial settlement from assets accrued after the parties divorced. Divorce professionals have had to enthusiastically peddle an explanation that the case has not yet been heard as to quantum. Presumably the public reaction will weigh on the final outcome.
The case attracted this succinct comment from Jo Edwards of Resolution “Resolution believes that Wyatt v Vince [2015] UKSC 14 is an illustration of the need for reform of the law around divorce finance as set out in its Manifesto for Family Law. Resolution wants reform to create greater certainty around divorce with the aim of getting couples to financial independence sooner.”
Divorce professionals will be meeting for Resolution’s annual conference this Friday and Saturday, in Brighton.
Part of the discussions will inevitably focus on the need for reform and the published Manifesto which addresses the following areas where change is needed:
- Protect vulnerable people going through separation
- Introduce measures to help separating people reach agreements out of court
- Introduce a Parenting Charter to help parents understand their responsibilities when they separation
- Allow people to divorce without blame
- Help people understand how their divorce will affect their future finances
- Provide at least basic legal rights for couples who live together if they separate (cohabitants)
The Manifesto is focused on providing people with information and clarity so that they can make their own decisions, while ensuring those who are vulnerable are protected. It makes children central.
The public have already voiced their support of these changes in their reaction to the cases making headlines over the past few months. Arguably, they could go further, but given the slow progress and reluctance to reform the area it is an exceedingly good start and should be widely supported by the public.
Zoe is a family lawyer with Keystone Law who specialises in advising mid to high net worth individuals on the financial implications of divorce and separation. She has particular experience in renegotiating financial settlements and challenging previous consent orders, separation agreements and pre or ante nuptial agreements.
As a trained and active collaborative lawyer, Zoe is well-placed to guide clients on the best choice of route to a successful conclusion of their matter, whether this is litigation or settlement.
Zoe is a member of Resolution and has been quoted in the national press in respect of pre-nuptial agreements.
Zoe has a background in private client and tax affairs.
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