Belfast Telegraph

Friday 26 December 2014

Marriage break-ups can't be reduced to a formula

Divorce law here isn't perfect, but the 'one-size-fits-all' solution proposed in England and Wales would be a backward step, says Denise Houston

January is usually the busiest month for divorce petitions, as couples who have gritted their teeth over Christmas and the New Year finally call in the lawyers.

While mediation and legal separation may be the first option for many couples, divorce will be the inevitable outcome - and that takes families into all the financial issues that are so often the source of rancour.

A consultation on establishing a 'formula' for the financial arrangements for divorcing couples in England and Wales was completed in December and may, ultimately, influence any reforms in the law here in Northern Ireland.

Divorce almost invariably means significant financial upheaval for a couple and for the whole family. While the law is clear that former spouses have a responsibility to meet each other's financial needs, it does not state to what extent - or for how long.

The financial issues often concern what is needed by the couple, as each partner struggles to provide a home for themselves and their children (if any) out of the resources that formerly supported one household. The recently completed consultation in England and Wales considered whether financial support should be calculated by reference to a formula which would provide an explanation of what is to be paid - and why.

It is the view of the Family Bar in Northern Ireland that this 'one- size-fits-all' approach would not improve the law; rather, it will produce inequitable decisions that are unable to account for individual circumstances.

Ultimately, this would only lead to greater discontent and cause further emotional and financial ramifications.

Formulas do not allow for tailor-made solutions; for example, in a situation where one party agrees to take a lower maintenance order to allow the other party to pay the mortgage for a period of time.

Therefore, a formulaic approach would significantly reduce choice for couples and would not provide the certainty which it claims to do.

Maintenance for joint lives has not often been granted in Northern Ireland in recent times.

The timeframe here is rarely beyond three to five years, though on occasions longer where there are dependent children.

Usually, maintenance is paid monthly, or the maintenance is capitalised into a lump sum.

This is the case whether or not there are dependent schoolchildren.

The Northern Ireland framework thereby encourages a spouse to gain independence by virtue of time-limited maintenance orders.

However, although the law in Northern Ireland is more flexible than that currently in place in England and Wales, there are areas where improvements should be made.

There is a need for the enforcement of orders to be toughened up, so that individuals and families are not left disadvantaged by the deliberately defaulting party.

The issue of non-matrimonial property - ie pre-acquired, post- acquired and inherited - also deserves fuller consideration by the courts.

More detailed consideration needs to be given to how farms should be considered post-divorce, as farms are more prevalent here as a large asset that may be passed to a party during the marriage.

Furthermore, prenuptial agreements should be taken into account by the Northern Ireland courts, provided fair and balanced safeguards are struck.

A system such as that proposed, which imposes a solution which does not take account of the very specific and personal nature of divorce, would be deeply flawed.

Financial arrangements following divorce are long-lasting and of the utmost importance to divorcing parties and their children.

Divorcing couples would benefit from the expertise and objectivity of the Family Bar to ensure the best resolution in these complex and emotional matters.

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