A Law Not Fit For Purpose
Divorce relieves one party to the marriage of all obligations, whilst maintaining the financial obligations of the other without the benefit of any corresponding rights.
This arrangement is absurd, inequitable and is discriminatory.
I present two examples at opposite extremes of judicial "discretion".
The current interpretation of the law applied by the courts is based on social construct that no longer applies. That construct is that women in marriage do not work and cannot look after themselves. Therefore there is a social need and concomitant public policy that women must be maintained until the death of one of the parties to the marriage. Given that women now contribute almost 50% of the workforce, it is anachronistic to continue to expect men to support divorced wives until the grave, and sometimes beyond.
Breakthrough Britain – The Family Law Review – The Centre for Social Justice
This present law has no resemblance to the statutory criteria: in reality England has almost entirely judge-made law on financial provision on divorce.
……..However it has many disadvantages, including:
It is judge-made and not based on any public debate or Parliamentary discussion.
The mores are arguably more rooted in judicial background than in wider society.
It leads to unpredictability and uncertainty (and therefore less opportunity for settlements) as judicial decisions can conflict with each other.
It is determined by the issues in the cases before the courts. So some issues, for example in ‘small’ money cases, are not adjudicated, while in contrast, in ‘big’ Money cases micro-issues are exhaustively examined with little relevance.
Groups in society dissatisfied with the direction of judge-made law have limited democratic redress.
It rarely leads to practical guidance to the profession and litigants on application of the law.
Explaining the law is not easy, especially as it often changes.
Baroness Deech – Divorce (Financial Provision) Bill [HL] Second Reading: 27 January 2017
“There has been much publicity recently about the alleged advantages of so-called no-fault divorce, but bitterness and mud-slinging cannot be eradicated from divorce. Mediation and reasonableness can be achieved only when the far more antagonistic and inflammatory law of financial provision and asset splitting is cleaned up.”
“….We hear much now about the desirability of no-fault divorce. That idea—a quick divorce without attribution of blame—places squarely on the table two irreconcilable notions. What is the point of fault-free divorce if the couple then spend years fighting over their money, with much more bitterness, expense, waste and loss to their children than ever was caused by the actual divorce petition? If it is sensible to recognise that a marriage may break down without fault, what rationale can there be for expecting one of the former spouses to continue to maintain the other for years and to give him or her half their pension and sometimes the home?”