No matter the specific circumstances of individual couples, divorce is a mix of the emotional and the administrative.
Most divorces are handled in a reasoned and reasonable manner, lacking the fireworks and fortunes which are features of many broken relationships making it onto the pages of the national newspapers.
Following the withdrawal of Legal Aid for all but a few Family law matters three years ago this month, an increasing number of divorces involving only limited assets are handled by spouses themselves.
In legal jargon, they are “Litigants in Person” and it’s no surprise that completing what has become known as a “DIY divorce” without the support of a trained Family lawyer like those of us at Oratto can seem a fairly intimidating process.
As a result, a body known as the Family Justice Council has produced a guide to simplify divorce for litigants in person (https://www.judiciary.gov.uk/wp-content/uploads/2016/04/fjc-financial-needs-april-16-final.pdf). One particular passage towards the end of the document has attracted media attention because it’s been interpreted as dismissing the relevance of pre-nuptial agreements. The Daily Mail, for instance, has suggested that the Council had concluded that marital contracts were “a waste of time" (http://www.dailymail.co.uk/news/article-3525528/Judges-say-ignore-pre-nups-unless-couple-rich-Warning-majority-agreements-waste-time-courts-instead-base-decisions-fairness.html).
Having read the guide in full and understanding both the reason for it and the couples that it’s aimed at, it’s possible to come to a rather different conclusion. As the guide – entitled “Sorting out Finances on Divorce” – explains, pre-nups have to be entered into voluntarily and fully understood. Those are just two of many safeguards put in place to ensure that they are fair and proper.
However, those who compiled it would be only too well aware of the great relevance which pre-nups have to an increasing number of families, and not just the super-rich.
It is true that the 2010 case which led to pre-nups being taken more into consideration may well have involved the heiress to a German paper fortune, Katrin Radmacher, but many independent specialists are pressing for them to have the full weight of law.
Two years ago, the Law Commission published recommendations (http://www.lawcom.gov.uk/project/matrimonial-property-needs-and-agreements) following a lengthy consultation, including a proposal that parliament introduce what it called “qualifying nuptial agreements” as a matter of some urgency.
Everyone who contributed to the Commission’s work appreciated that the increasing frequency of divorce and the growing likelihood of spouses having assets or offspring from previous relationships to protect makes pre-nups very sensible indeed.
Therefore, although the latest guidance is helpful in its own way, it’s important to appreciate its context. Regardless of assets, approach or advocates, anything which can take the potential for dispute out of the business of determining who gets what if a marriage doesn’t last the course has distinct merits.