English divorce law: Divorced from reality

Today’s (London) Times contains an opinion article from the paper’s former editor, William Rees-Mogg, attacking the English divorce system. The article, entitled “Divorced from the realities,” reflects a rising tide of anger in England that the English divorce laws, as they have been changed drastically but badly by the English judiciary in the past five years, have become an international laughing-stock.

As it now stands, the English divorce law contains no real guidance to divorcing people who have assets as to how their affairs will be handled in the event of a divorce and it refuses to allow the parties to make plans for their future since England still does not recognize prenuptial agreements.

The English “system” makes matters even worse by throwing everything into the pot of marital assets that the courts have power to carve up, including everything that a spouse brought into the marriage and everything that he or she has inherited. And then, to really add insult to injury, the courts seem to be opening the door to allow each party to use the other’s purported misconduct as a significant factor for the court to consider in determining the asset division.

Accordingly, as things now stand, if you are representing spouses in a case involving substantial assets, you (a) can provide the client with no realistic idea of what to expect as the outcome of the case, (b) must advise you client to dig up all possible dirt about the other client, because you must expect that the other side will do the same thing concerning your own client, and (c) must investigate intensely whether, in an international case, an English award will be enforceable in other jurisdictions, or whether it will be rejected overseas on the grounds that the current English divorce law is in derogation of the fundamental public policies prevailing in other jurisdictions.

The present situation is the results of judges having exercised the power to change the law on a case-by-case basis in order to reform an antiquated system but not having the power to create rules that make sense universally. The common law development of legal principles has worked well over the centuries to create useful bodies of law, but it cannot work well in the short term if
judges change prior law overnight and then wait for other cases to make their way through the courts that will eventually lead to a sensible group of tested rules.

Let us hope that the House of Lords provides some further clarification and reform in the two cases that are now pending before it. More significantly, this is a matter that cries out for legislative reform.