Head of Family Law
at K J Smith Solicitors
In legal terms, divorce is, essentially, the ending of a contract and ideally the parties should work together to bring it to an amicable close, or at the very least, a civil one which both people accept as being reasonably fair.
In the real world, however, divorce can be an unpleasantly sticky mess which family courts have to clean up as best as they can.
The basic ground rules of divorce in the UK
The number one ground rule of divorce in the UK is that if a couple has minor children, their perceived welfare comes before every other consideration.
Family courts will not necessarily give the children exactly what they want (although judges will generally do everything they can to take this into consideration) but they will do everything in their power to provide them with what they need, even if it goes against the wishes of their parents.
After that, the aim of the process is basically to try to create a fair split (literally and metaphorically) so that both parties can move on with their lives.
The question of fairness
In England and Wales, traditionally, it has been considered fair to aim to split assets equally between both parties, regardless of which one was the breadwinner.
It has also been considered fair to order the breadwinner keep the other party indefinitely, so-called “lifelong maintenance”.
Up until relatively recently, this approach, was, arguably, if not necessarily fair, then very far from totally unreasonable. It recognized the fact that the party who “stayed at home with the children” (usually the woman) was making a contribution to the marriage and made it possible for the other half of the couple (usually the man) to go out to work.
It also recognized that younger children required care and that by the time they were old enough to fend for themselves, their carer (usually their mother) might struggle to find a decent job, especially if they had neither trade skills nor education.
That, however, was then, this is now. Women are not just able to work, they are the main breadwinners in about a third of households in the UK and marriages do not necessarily involve children.
In short, the world has moved on and the legal system needs to move on with it.
Laws and attitudes both need to change
In principle there should be absolutely no difference in what happens when a woman is the main breadwinner and what happens when a man is the main breadwinner.
The law itself makes no distinction between these two situations, the challenge is to change attitudes amongst those who apply it (who tend to be people who are middle-aged and older) so that they become less inclined to see women as being automatically in need of protection (meaning maintenance) and men as being necessarily always able to provide for themselves (and possibly others) on an indefinite basis.
The good news is that this change does appear to be trickling through, albeit possibly at a slower pace than some people would have liked.
The Maria Mills case, for example, has highlighted both the issues of the traditional open-ended maintenance system and the fact that judges are becoming more willing to push back on people, including women, who view it as a “meal ticket for life” and who therefore see themselves as entitled to depend on their former partner financially even though their children are adults and they, themselves, are quite capable of working.
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About Kerry
Kerry Smith is the Head of Family Law at K J Smith Solicitors. K J Smith Solicitors are experienced family solicitors in the Thames Valley area specialising in family mediation, estate planning and divorce and separation.