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Permission to Lob One’s Head Off,
Your Honour?
We in England and Wales should be lining up outside London’s Law Courts, waving our fists in the air and shouting for change at the top of our voices. But we are traditionally a fairly non revolutionary nation, preferring to stick with our institutions rather than watch their heads being lobbed off by the first radical with a big issue and a sharp blade. We prefer to sit tight and press on until one of us becomes sufficiently fed up and lobs his own head off in protest.
During divorce court hearings, heads have been rolling for some time now. Judges have become the subject of angry recriminations levied by consumers of the English legal system, who are being force fed a diet of very thick pea soup; because when it comes to decisions in the divorce courts about the division of assets and ancillary relief, the unhappy consumer cannot see his way to the bottom of the bowl. There is just a soupy mixture of vague recommendations and precedent.
The law that governs the division of assets in England offers a list of recommended guidelines but allows judges to enforce orders on a case by case basis. This might seem sensible at first sight, in that every case surely is different. But the trouble with the flexible application of guidelines is this:They are too easily influenced by the subjective view of the judge. Prior to my own court hearing for financial settlement, my solicitor said:
Don’t worry too much, this judge is usually pro-wife.
Reassuring? Great if you happen to be the wife.
If judges are left to make subjective decisions about major issues that have a massive impact on other people’s lives, naturally people are going to leave the courtroom unhappy.Examining the issue on a case by case basis poses many problems. Existing guidelines sometimes take account of the length of the marriage, but they concentrate more on the future needs of each party, as well as any children. Nobody can deny that the needs of the children should be important, but surely it would be more relevant to focus on the past (generally the repository of the truth) in order to reach a decision, rather than the future, which can change at any time?
To avoid the subjective soup altogether, there should be set guidelines which are simple and easily applied. Then the parties could avoid filling the pockets of solicitors with fruitless debate; in the event of any dispute there would be a set solution.There is also a further issue that needs to be aired: that of gender. Society has changed but the legal system has lagged behind. We need to ask ourselves just how responsible should one party in a marriage be for the other in an age of sexual equality. Should marriage be a meal ticket for life? Once we have had that debate, perhaps the idea of a pre-nuptial contract will not be such a passion killer.
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