REPORTS OF COMMITTEES
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02488.x |
| Published date | 01 July 1982 |
| Date | 01 July 1982 |
REPORTS
OF
COMMITTEES
LAW
COMMISSION
REPORTS
ON THE
FINANCIAL
CONSEQUENCES
OF
DIVORCE
IT
seems to be the destiny of English family law reform to proceed
in piece-meal fashion. The English and Scottish
Law
Commissions
have almost simultaneously published reports on financial provision
on divorce.' The Scottish Report offers
a
complete, systematic
rcview
of
financial and property adjustment, not only on divorce.
but also during marriage, and attempts a principled, integrated
rcsponse. The English Report cannot be fully understood without
reference to earlier reports on family property,2 the Discussion Paper
issued in
1980
and possibly the Report concerning magistrates'
courts
proceedings.*
It is not surprising that the result of considering
different aspects of the question at different times, by different
Commissioners, is less than wholly satisfying.
The Scottish Report ranges widely and no attempt will be made
here to provide a complete summary of its recommendations. Rather,
I
will try to point up the most important differences which
will
underlie the strategies of English and Scots law in dealing with
financial and property questions on divorce should each of the
reports be substantially implemented.
The extent to which systems of deferred sharing of family acquests
have spread from the Scandinavian countries, through western
Europe and North America to as far away as New Zealand is
remarkable. England and Australia remain the only substantial
common law jurisdictions
to
have resisted this tide, and the Scottish
Commission wishes to go along with it.
It
therefore recommends a
general principle of equal sharing of the net value of matrimonial
property, which is defined as property belonging to either or both
parties at the date of final separation which was acquired (otherwise
than from
a
third party by gift or succession) (i) before marriage
for use as the joint residence (including furniture or equipment
therefor), and (ii) after the marriage. Importantly, rights or interests
under life policies or pension schemes accrued between the marriage
1
The
Law
Commission.
Family Law: The Financial Consequences
of
Divorce.
Law
Com. No.
112
(December 1981); Scottish
Law
Commission,
Family Law:
Report on Aliment and Financial Provision,
Scot.
Law
Com. No. 67 (November
1981).
2
The
Law
Commission,
Family Law: First Report on Family Property:
A
New
Approach,
Law
Com. No.
52
(1973);
The
Law
Commission,
Family
Law:
Third
Report
on
Family Property: The Matrimonial Home (Co-ownership and Occupation
Rights) arid Household Goods,
Law
Com. No. 86 (1978).
8
The
Law
Commission,
Family Law: The Financial Consequences
of
Divorce:
The Basic Policy,
Law
Com. NO.
103
(1980).
4
The
Law
Commission,
Family Lmv: Report
on
Matrimonial Proceedings
in
Magistrates' Courfs,
Law
Com.
No.
77
(1976).
420
July
19821
REPORTS
OF
COMMITTEES
42
1
and final separation are included.6 Business property is included,
and the Commission might like to consider how far it is prepared
to contemplate lifting the corporate veil to reach otherwise qualified
assets (see Ontario Family Law Reform Act
1978,
s.
3
(b)
(ii)) and
the extent
to
which goodwill should be included. Special circum-
stances
(I
will return to this) are specified which may justify
departure from the equality principle.B
The partnership principle rests upon an ideology, shared by
most married people (as a survey requested by the Commission,’
and others, have shown) that family property is
“
ours
”
and should
be equally divided on dissolution. But its value (as the Commission
recognised) should not be pushed too far. The property survey
confirmed what was already well appreciated,* that for the vast
majority of people, capital assets are too insignificant to make an
effective contribution to their post-divorce lives (and this may be
even more true for the divorcing population). Their most valuable
asset (and security for the future) is the earning capacity of both
or either of them, but this does not count as matrimonial property.
As
for those (mostly men) who stand to lose significantly on equal
division of assets, we do not yet
know
how frequently they will
come
to
contract out of the partnership principle (as all systems,
including that proposed for Scotland, allow) or even evade it alto-
gether by avoiding marriage. Perhaps this pattern has started already
in Sweden and West Germany.
So
it is necessary to provide other principles of resource distribu-
tion. The Commission provides four. The court can assess a spouse’s
contributions (financial or otherwise) to the marriage and evaluate
disadvantages incurred
on
entering
it
and,
if
these are not fairly
rccognised by asset sharing, make an additional award for financial
provision. But the great merit of the partnership principle is that the
rule of equality avoids such speculative assessments. Should not this
apply here too? Take the case (posed by the Commission) of
“
the
well-qualified woman who married, say,
20
or
30
years ago and gave
up her own career prospects, perhaps with the encouragement or
passive approval
of
her husband, in order to look after and bring up
the family.”
Does
not the partnership principle require equal sharing
of
the
risks
of
break-down, as well as assets, and,
if
this is
so,
does
it not mean that, by sharing in her former husband’s income after
divorce, she should be enabled to reduce the consequences
to
her
of the impairment of her earning capacity?
If
not, the risk of child
care falls disproportionately on her. Yet another principle enunciated
by the Commission is that of fair provision for adjustment
to
inde-
pendence for a maximum of three years. But,
if
a spouse is divorced
Scot.
Law
Corn.
Recs.
32
(a)
(b)
and
(c).
Manners and Rauta,
Family Property in Scotland
(1981).
6
Ibid.
Rec.
32
(d).
8
See
the
excellent discussion in Mary Ann Glendon,
The New
Family
and
the
New
Property,
Chap.
2.
*
See
Scot.
Law
Corn.
No.
61,
para.
3.94.
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