Friday, 14 March 2008

OF RELEVANCE TO MERE MORTALS


In anticipation of the final judgment in the McCartney v Mills divorce on Monday 17 March, Resolution issued a press release today pointing out that although the sums of money involved in this case are far removed from the experience of most separating couples, it does raise a number of issues relevant to more ‘normal’ divorces.

Firstly, a high-conflict court battle is not the inevitable end to marriage breakdown, even when there is a lot of money on the table. The traditional approach to divorce involves two solicitors who rarely meet and who focus on representing one side of the split in and out of court. In contrast, mediation and collaborative law offer couples an alternative. With everyone sitting round the negotiating table at the same time, conflict can be reduced and couples are encouraged to reach agreements together, rather than having a decision ‘imposed’ on them by a judge. Collaborative lawyers work with each other during structured meetings with both the husband and wife to reach agreements that suit all the family – especially children. In this way, collaborative agreements are much more flexible than the court process, as couples are not obliged to follow the letter of the law and can instead agree to something different that works for them.

Secondly the need for pre-nups that stick. When courts decide how to divide up the marital pot, current legislation creates a great deal of uncertainty around who will get what. It’s this uncertainty that leads people to rely on expensive court battles and the interpretation of the law by individual judges. With second marriages on the increase, more and more people want the security of a pre-nuptial agreement to end this uncertainty. Resolution lawyers argue that the law is out of step with the demands of the modern family - a divorcee with children may be put off marrying a new partner preciously because the current law doesn’t protect money and property acquired before the relationship. Resolution is calling for legal changes to make pre-marital agreements binding, allowing people to take control of their own financial future rather than relying on the current lottery of divorce court hearings.

Thirdly that when assets acquired individually by a husband and/or wife are brought into a marriage this can be taken into account when finances are divided as a result of divorce, especially if the assets are considerable or if one party has made what the law terms an ‘exceptional contribution’ to the marriage. The usual position, however, is that a marriage is considered to be a partnership of equals, assets acquired during the marriage fall to be divided equally and unequal contributions are only relevant where it would produce an unfair result not to consider them differently.

Fourthly that the length of the marriage is of relevance. Sir Paul McCartney and Heather Mills were married for a relatively short time. The effect of the shortness of the marriage may be something mentioned in the judgment. Shortness of marriage can be important but only as one of the factors to be taken into account.

Finally, financial proceedings in family law cases are normally conducted in private. This encourages the parties involved to negotiate with each other, even when there is extensive media interest. Usually judgements are not made public. The judge in the McCartney v Mills case has indicated that he intends to make part of the settlement public due to the level of media interest in the case.

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