With the Florida legislative season underway, it is important to keep an eye on what other legislatures are doing for family law. This is especially true with news that the UK is set to explore changing the law of property division during a divorce in England and Wales.
A spanner in the works
The current property division law in the United Kingdom, the Matrimonial Causes Act 1973, has recently been criticized by people as being uncertain and unpredictable. Many argue spouses are left to turning to costly litigation due to a lack of clear guidance on how wealth should be divided.
The Law Commission, the independent agency which reviews legislation, may examine whether the act needs updating with further announcements expected “very soon”.
London has developed a reputation as a magnet for wealthy couples seeking a divorce in recent decades because of the generosity of financial awards given to ex-wives by the courts in the capital.
The English legal system tends to split the combined wealth of divorcing spouses equally even if one partner is the breadwinner. This is similar to the United States, but is in contrast to many European countries, where financial awards are far less generous and maintenance is only given for a limited number of years.
Under the current law, spouses who go to court can spend thousands on legal fees because legal aid is no longer available for most types of family law, and the drawn-out court battles can be detrimental to children.
Florida Property Division
I’ve written about the subject of property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by Florida Statutes as interpreted by case law.
Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal. However, if there is a justification for an unequal distribution, the court has the authority to award an unequal distribution of marital assets.
However, the court must base an unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.
It has been a long-standing rule in Florida that an unequal distribution of marital assets may be justified to compensate for things such as a spouse’s intentional dissipation, waste, depletion or destruction of marital assets.
The status of prenuptial agreements in the UK may also be considered. Prenuptial agreements in the UK are legal documents specifying how assets are to be divided when the marriage ends. Prenuptial agreements are now recognized by UK courts following a seminal 2010 Supreme Court involving a German paper industry heiress.
But legal experts believe prenuptial agreements in the UK should be put on to a more formal, statutory footing and enshrined in law. Others complain the legislation, which has been subsequently developed by judge-made case law, allows judges to use their discretion to assess each case and make different awards, creating uncertainty.
Judges have flexibility when it comes to allocating settlements but the variation in judgment, said lawyers, made it difficult to advise clients about the likely outcome of their case.
Critics of the current property division system believe obscurities in the legislation should be tackled. Lawyers highlighted regional variations in how divorces are settled. Many critics complain that London courts tend to award more generously, while many courts outside the capital prefer to give “time-limited” maintenance to financially weaker spouses.
Some argue that the law also fails to reflect the way British society has changed in the past 50 years — with women more financially independent and with dual earning couples becoming the norm.
The Financial Times article is here.