Whether the Current Law Is Satisfactory - Coursework Example

Family Law Introduction The family laws are conglomeration of biblical religious principles, Acts of Parliaments and traditional customs.1 For example, the Bible allows divorce either due to infidelity by one of the spouses, but does not offer the partners a chance to remarry after the divorce. The English Common Laws accepted separation of the partners so that it was not possible for the separated partners to remarry. Also, the Act of Parliament allowed divorce under certain conditions to be fulfilled by both parties.2 The court advocated end of marriage under the Matrimonial Causes Act 1857. When individuals decide to separate it becomes complicated to share the property they had amassed on equitable terms.3 Any consideration of divorce should accommodate the views about children and other needs of the spouses. The sharing of property depends on a number of factors such needs of the spouses, their contributions to the wealth creation, any special consideration and agreements between the parties among others.4 2. The idea of Equality Under English common law, the parties any partner in marriage can petition for divorce by presenting the case to the court on the claim that the marriage has broken down irretrievably.5 The modern law of divorce is contained in the Matrimonial Causes Act 1973 which is based on Divorce Reform Act 1969 to replace the system of separation that was based on divorce. The modern divorce is based on claims of infidelity or unreasonable behaviour by one or both partners. The purpose of the current law of divorce is to ensure fair divorce and avoid causing trauma to the family members.6 The court’s decision is based on fairness consideration by ensuring that the wealth created by the partners during their marriage life is shared equally among the partners in time of separation. For example, in the case of White v. White,7 the court issued that partners should share equally the wealth they had worked for together in marriage. Where possible the partners determine their contribution on the basis of fair sharing of wealth as identified in the case of Foster v. Foster8. In the case, the couple had been married for two-and-half years and without any child. Based on the shortness of a period the court was able to separate the property each owned before getting into marriage and returned with the getting 61% share of that property. There are some instances when the court has assumed that partners make different contributions to the well fare of the family. The assumptions have focused on the breadwinner or the partner involved in income generating activities like the one contributing most to the family wealth. This assumption usually favours men to the detriment of women who mainly spend most of their time taking care of their families as a home-maker.9 Where one party works as a home-maker the law recognizes their economic contribution to the wealth of the family because in so doing they gave the other spouse liberty to engage in economic activities hence contributing to increase in family wealth. However, in case the partners opt to end a marriage, the home-maker deserves a share of wealth generated by the other partner under compensation principle.10 The compensation should be fair adequate to reward her for the economic detriment she suffered by devoting their time as home-maker instead of engaging in income generating activities. Although it is not possible to quantify the contribution of a home-maker, the income generated by the other partner should be shared among them because they were all working for the welfare of the family.11 The sharing of wealth can be determined according to the future plans the couple had in their marriage before the separation scheme. According to the court’s decision in the case of G v. G.,12 equality does not imply fifty-fifty share of the assets. It simply means that both parties are put in the stable financial condition as determined by consideration of various factors such as individual capacity to generate income and incur a risk during. The court should also take the review of the liquidity of the assets to be shared because in case of illiquid assets it is not possible to share among the two, and only one person will have to keep them. In the light of this consideration the partner who incurred greater risk and generated more income has the right to maintain that asset.13 The court takes into account the contribution of each partner in the in the welfare of the family. The wealth is shared equally among the partners unless where the marriage has lasted for a short period or where one partner is in possession of special skills that may have contributed to amassing of wealth for the family. In the case of Leadbeater v. Leadbeater,14 the marriage had lasted for four years during which the wife had accumulated £80,000 while the husband had £250,000. They petitioned for divorce, and the court made consideration of the standard of life the woman lived before and after marriage. The judge made an arbitrary decision that she deserved an additional £50,000, but due to the shortness of the marriage the court discounted 25% of the amount to be added, and she took £117, 500. Another consideration made by the court to determine how the partners should share the family wealth during a divorce is the reasonable requirements of each partner. In the case of Page v. Page,15 the partners had been in marriage for 41 years after which they petitioned for divorce. At that time, the husband had accumulated a capital of £359,000 while the wife had £29,000. The court tried to harmonize the family assets among the partners and decided the wife required £120,000 thus she was given £90,000 from the husbands capital. However, the court’s decision to award the wife a share of 120,000 from the family wealth was based on a principle of requirements for survival and did not include any premium for the long time in marriage. Section 25 of the Matrimonial Causes Act, 1973 establishes elements the courts take into consideration in order to ensure equitable sharing of family assets in case of divorce or separation of the parties.16 In addition, the Act sets factors that the petitioners must satisfy in order for the court to decide whether the marriage has been irretrievably broken down.17 The purpose of considering the cause of the breakdown of marriage is to ensure is to offer the good reason for practicing inequality fair practices in sharing resources among the parties. For example, the court considers marriage irretrievably broken if one of the parties engaged in adultery thus making the other spouse intolerant; they have been separated for more than two years continuously precedent to the presentation of plea acted in in manner in which the petitioner cannot be reasonably anticipated to live with the plaintiff.18 The court in exercise of its power to determine a divorce case has to take into consideration several factors about the partners. These factors may include income of potential earnings of each party at present or in the future, the financial needs or responsibilities either at present or in the foreseeable future, the living standards enjoyed by the family prior to separation, parties conduct especially regarding to inequality, any mental or physical challenges of the parties, parties contributions to the welfare of the family, etc. 19 In the case of Foster v. Foster20, the court took into consideration the length of time in which the parties had been married and lived without a child and each of the parties contributed to the welfare of the family. Since the marriage had lasted for a short period of two-and-half years the court was able to separate the properties of each party and the remaining property was considered to be acquired through joint effort thus it was shared equally. For this reason, the wife was given 61% of the family assets, and the man took the remaining 39%. However, the condition of the married couple with children requires different considerations. For example, in the case of Lambert v. Lambert,21 the court the duration of marriage and other contributions each party made to the welfare of the family. The court also took into consideration the contributions of bringing up children and effects of traditional gender discrimination on partners contributions to the family. For example, traditionally women were earning less than men hence they could not be expected to offer similar financial contribution to the family. In addition, some other aspects such as social factors are not quantifiable yet they make the significant impact in the welfare of the families.22 Therefore, where appropriate the approach for ensuring equitable sharing of family wealth in case of a divorce or irretrievable separation is to separate personal assets and share the rest equally in the assumption that each party made uniform contribution to creation of those assets. Principles that can result in unequal sharing of a matrimonial wealth The best and most convenient approach to a divorce is for the partners to share matrimonial property equally whenever possible.23 However, equal distribution of wealth may work well for the partners who had no wealth at the time of marriage, have been married for a short duration it is not easy to achieve equality due to technicalities of prevailing conditions. The court takes into consideration of the needs of the spouses both present and future needs to ensure whether related to marriage outside the marriage.24 Various people have different needs that should be meet hence they require consideration during the court decision on divorce. The court will have to take into consideration of the living standards before and during marriage, as well as the possible future needs, in order to determine the amount of resources required to meet those needs.25 However, the requirements should be reasonable to ensure no partner misuses the resources at the expense of the other. Sometimes the inequalities arise during sharing wealth especially if the partners had some wealth before marriage or created wealth individually.26 Occasionally it is possible that one or all the spouses get into marriage with property acquired as gift or inheritance in which case they are treated separately as belonging to the partner who brought them. The separate property should be given to the owners while the joint property is shared equally among the two partners.27 In this case, the owner of the inherited property will take the larger share compared to the other party. This will mainly happen when the partners have not been in marriage for a long time thus making it reasonable for the court to distinguish individual property.28 However, if the property was used by the couple to generate family wealth, it may result in a complication during divorce when the parties decide to separate it instead of treating it as matrimonial property. Other consideration includes future obligations related to marriage. Marriage comes with responsibilities, and different partners have varying responsibilities.29 For example, in the case of Ancillary proceedings: lump sum) [1998] 1 F.L.R. 53, when sharing the wealth the interest of children is taken into consideration. The court ensures the principal carer of the children is given more resources adequate to meet reasonable requirements of the children and where possible meet the requirements of the absent parent.30 The one responsible for children will be given larger share in consideration of the requirements of the children thus the principle of equality cannot be achieved between the parties during separation. Also, other individual needs will influence the share of property because the aim of the court is to ensure all partners have similar financial footage and not necessarily having equal amount.31 In addition, partners can enter into an agreement by stipulating how the property will be shared in case of divorce. The court has to examine the fairness of the agreement before upholding it. For example, in the case of Radmacher v Granatino,32 the partners entered into pre-nuptial agreement and the court upheld the agreement prohibiting her French husband from inheriting the wealth of his German heiress wife. The agreement was binding in the two countries. However, the court can uphold the prenuptial principle if the parties entered into the agreement at their free will and with full knowledge of the consequences of the agreement.33 For this reason, depending on the conditions in which the partners came into the marriage it will influence the share of matrimonial property each of the parties can have. The origin of the business will influence how the assets will be shared among the partners in the event of a breakup. In case the business originates from one partner that partner will get the larger share of the business compared to the spouse.34 In addition, in case of illiquid assets the partners may decide to retain the shares of the illiquid assets in order to ensure equality of sharing resources and avoid destroying the source of income. Although the partners may decide to maintain shares of the company and continue enjoying share of future income and risks, at other times it is impossible to share illiquid business in which case the person who was managing them may have to maintain them.35 In this case, the one who maintains the asset may have more share than the other. Critically evaluate whether the current law is satisfactory The current law is satisfactory because it attempts to achieve equality in divorce by taking into consideration the contribution of each partner to the wealth of the family.36 However, considering the individual contribution has challenges because it focuses on special skills instead of hard work. In some cases, women are disadvantaged because they were traditionally discriminated by, not being given equal opportunities to participate in economic activities.37 In addition, women spend a lot of time taking care of the children and managing the family hence their effort may not be adequately recognized in a case of divorce.38 In addition, the technique used to evaluate individual skills that may contribute to a creation of family wealth the approach is gender biased. The law focuses on economic activities and the skills the in generating resources without any regard for the skills women might have in caring for their children.39 For example, women might be very skilful in offering special skills to children with special needs or managing her relationship with the spouse that does not count when deciding on the contribution of each spouse to the family wealth. Even if all activities were to be ranked equally, it would be difficult to evaluate individual effort in their activities.40 Except in extreme cases where the court may require an evaluation of individual effort in homemaking and business fronts the court assumes that all parties made equal contributions to their lives in marriage. Also, the law recognizes spouses as equal in marriage hence have the right to the equal share of matrimonial property in case of divorce or separation. The goal is to ensure the parties should not be worse off than they would have been had the marriage not been broken as required in minimal loss principle.41 It may require slight modifications to maximize the satisfaction of both partners. Reforming Modern Law When partners get into marriage, their goal is to be together and work to create wealth for the family. However, divorce arises as a consequence of either one or both partners thus making the other decide to opt out of marriage.42 The law can be reformed to reward the loyal party or punish the one responsible for the marriage breakdown. In addition, the party engaged in business activities may have misappropriated some part of family earnings that cannot be available for sharing.43 The modern law should be able to examine the conducts of the person managing the resources take into consideration the extent to which the other partner can be compensated to achieve equitability. Bibliography Bailey-Harris, R. (2001). 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Foster [2003] EWCA Civ 565 G v G (Financial Provision: Equal Division) [2002] EWHC 1339 (Fam); [2002] 2 F.L.R. 1143 (Fam Div) Ian, S. (1998). “The economics of the grounds for divorce in Great Britain, “European Journal of Law and Economics 6, no. 1: 39-52. Jeffs, H. (1996). Family Law Bill {HL}{Bill 82 of 1995/96}: divorce law reform. House of Commons Library. Julie, M. (2002). “Mediating ethically: The Limits of codes of conducts and the potential of a reflective practice model.” Osgoode Hall LJ40: 49 Lambert v. Lambert[2002] EWCA Civ Leadbeater v. Leadbeater [1985] F.L.R. 789 Liz, R., (2012). Understanding Family Law. Miller, G. (2006). Dealing with the "goose that lays the golden egg." Sweet & Maxwell and its Contributors Miles, J. (2001). Case Comment Equality on divorce? Cambridge University Press Oliphant, R. E. & Steegh, N. V. (2007). Family Law. Aspen Publishers Online. Pp. 1-499. Page v. Page (1981) 2 F.L.R. 198 Probert, R. (2011). Family Law in England and Wales. Kluwer Law International. Pp. 244 Radmacher v Granatino [2010] UKSC 42; [2011] 1 A.C. 534 Statsky, W. (2014). Family Law: The Essentials. Cengage Learning. Pp. 1-448. Sarat, A. (2008). The Blackwell Companion to Law and Society. John Wiley & Sons. Pp. 1- 688 Stephen, G & Glennon, L. (2012). Hayes and Williams’ Law. Oxford University Press, 2012. Stewart, A. (2011). Gender, Law and Justice in a Global Market. Cambridge University Press. Pp. 273-321. Sumner, I. & Warendorf, H. C. S. (2005). Inheritance Law Legislation of the Netherlands. Intersentia NV, Pp.107. Teale, C. & Fisher, N. (2011). Marriage, separation, and divorce and their effect on family wealth. Sweet & Maxwell and its Contributors White v. White [2000] 3 W.L.R. 1571 Read More