Why no outcry? Well, because it's pretty unlikely to actually become law. The Divorce (Financial Provision) Bill is a private member's bill introduced by Baroness Deech to the House of Lords. As such, it is improbable that the Bill will make it to the statute books. It should, however, re-open debate about necessary reform of English divorce law.
As a dual-qualified lawyer acting in both English and Scottish divorce cases, I have knowledge of both systems, and am well aware of the pros and cons of both sides. Putting my cards on the table, I am in favour of some (but not all) of the Bill… and I don't think I've losing my objectivity to favour the legal system of the country of my birth.
Baroness Deech cogently explains herself the rationale behind the Bill in the House of Lords blog, but to summarise:
The law is uncertain
The current English legislation has a huge list of factors which are supposed to be taken into account in deciding a financial split. Judges (in the absence of Parliamentary reform) have attempted to shape the law on a case-by-case basis. The leading factor was initially the claimant spouse's "needs", then the principles of "equal sharing" and "non-matrimonial property", were introduced. The law is now quite far from the actual wording of the Act. The end result is great uncertainty and unpredictability of outcome.
The law is costly
The uncertainty means more cases brought before a Judge, provided the parties can afford the cost of doing so. The slashing of the legal aid budget means some spouses will simply be unable to afford a lawyer to represent them in court. The current state of the law provides very little clear guidance for spouses to mediate between themselves, or to represent themselves as a party litigant in court.
The law needs reform
The Law Commission has recently investigated reform of pre-nuptial agreements, maintenance and non-matrimonial property, but stopped short of making proposals in relation to maintenance and non-matrimonial property, in part to avoid controversy. The Baroness is to be applauded for at least attempting to go where the Law Commission feared to tread.
How does the Bill try to address these problems?
If the Bill was made law, pre-nuptial agreements would be binding, provided certain safeguards (e.g. full disclosure of assets, legal advice for both parties) are in place. This goes much further than the Law Commission's recommendations, which advised that even in those circumstances, a pre-nuptial agreement can still be over-ruled if the claimant's "needs" require it. And "needs" in English law does not mean basic subsistence - depending on the case, it can mean a luxury mansion, a substantial pension or savings pot, and maintenance for life. As the debates on the Bill point out, this means that even where parties have attempted to prevent expensive legal disputes by entering into an agreement, they might still end up in a lengthy legal battle to determine whether or not they should be held to that agreement.
Matrimonial property would normally be shared equally, by introducing a system very similar to that in Scotland. Pre-marital assets, post-separation assets and inheritances would all be excluded from division. There are some circumstances where unequal sharing would be possible, although this is perhaps where the wording and intention of the Bill is a bit less clear.
Maintenance would be limited to three years. This is actually more stringent than the Scottish rules, which allow maintenance for longer periods in exceptional circumstances.
Most English family lawyers are firmly in favour of the flexibility and discretion which the law in England currently allows. But has the time come for a new (tartan) approach?