Sunday, October 11, 2009

Developments in English Divorce Law

Under English divorce law, there is no distinction between "property division" and "spousal support".  Judges are given great discretion to achieve a "fair" result.  During the past decade, high court judges have reevaluated what this means if the parties have more property than needed for the parties' basic needs.  Until about 2000, in "big money" divorce cases the poorer spouse was awarded enough to provide for his or her "needs," as adjusted to the standard of living during marriage.  The richer spouse kept the rest.  So, one might say that, compared to the U.S., for a rich spouse England was a divorce haven.

In 2000 judges stoped using "need" as the focus and began to use terms such as "equal sharing."  One might comment that equitable distribution came to England (through its courts, not its legislature) about two decades after it was accepted in the U. S.   During the past decade, courts have tried to clarify whether the norm of equal sharing included premarriage acquisitions (to which the answer appears to be, much to the relief of Paul McCartney, no), as well as when an unequal division is appropriate.  This has left English divorce law in a mess.  As one might expect, different trial judges are interpreting these vague new rules in different ways, so forum shopping is rampant.  http://business.timesonline.co.uk/tol/business/law/article6817795.ece

It is unclear what is next for England.  The present English government seems to have little interest in getting mired in legislative family law reform.  But the current level of confusion also seems to beg for some sort of response. 

  T. O.

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Comments

No wonder England has been called “the Harrods, as it were, for those shopping for divorce jurisdictions” by Jennifer Conlin in The International Herald Tribune (http://www.iht.com/articles/2007/02/09/yourmoney/mdivorce.php?page=1). I imagine that international forum shopping is a particularly big problem in the European Union, where geographical boundaries are essentially meaningless for EU citizens and it is relatively simple to establish jurisdiction for divorce in another country.

Posted by: Margaret Ryznar | Oct 11, 2009 1:41:56 PM

The English Law Commission is about to begin a major research project, focusing on marital property agreements http://www.lawcom.gov.uk/marital_property.htm

Posted by: Mairead Enright | Oct 11, 2009 1:58:49 PM

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