A Good Reason for a Bad Idea

British courts have adopted a rule change designed to discourage divorcing couples from fighting about their divorce — a presumption that each party will pay his or her own fees. Here’s an article about the plan in The Guardian.

The stated reason for the change is to do away with the idea of “winning” and “losing” in court, so parents won’t fight so much. The article quotes a divorce lawyer who speaks favorably of the change: “Gambling over who pays legal costs will effectively end. Those who don’t keep their costs to a minimum may end up with a splitting headache when they are faced with the final bill.”

Sounds good, huh? You’d think that with all the attention I pay to the need for people to stay in control of their divorce and not depend on the judge to decide what to do about it, that I would be in favor of this too. No way, and here’s why.

When one spouse has a large income and access to lots of cash and the other has to scrape by to get enough to pay the rent, it’s crucial not to allow the higher-income spouse to starve out the lower-income spouse. Unless I misunderstand the British policy change (and I hope I do), it will shift the power in divorce negotiations dramatically, away from lower income spouses (mostly wives) and toward higher income spouses (mostly husbands).

Does this policy change make any sense? Like I say, I hope I’m wrong.

One comment

  1. English Joe says:

    Hi,

    Actually I believe this is a very good idea and will help stop the chain of circumstances in England and Wales (Scotland and N. Ireland have separate laws on this) that leaves couples bankrupt.

    I can illustrate this through my experience:

    Eight years ago my wife left home to start a relationship with another man and left me to bring up 4 children of school age (oldest was 11). Just under 2 years later she ‘returned’ to the family home, filed for divorce, and was immediately granted “Legal Aid” to pursue the divorce through the courts.

    My ex-wife was granted Legal Aid because though all savings and property were in joint accounts, she was not in full time employment and earned less than £14k per year. I did not receive Legal Aid as I was in full time employment, earning over £40k.

    Legal Aid is generally not accountable, only that “unreasonable costs” may not be incurred. However this is loosely defined and over a period of one year I received over 150 separate correspondences from my ex-wife’s lawyers for which I had to reply. There was no way I could understand the proceedings or the significance of this barrage of correspondence which concerned custody of children and property, maintenance and child support, or court proceedings.

    Though we led separate lives my income went primarily to mortgage and household expenses and what ever was left to maintaining myself at work. Paying for a lawyer became increasingly difficult and eventually my parents cashed in a large slice of their pensions so I could stay legally represented.

    Cost was no such barrier to my ex-wife (or possibly her lawyers), there was no consequence to this a barrage of documents apart from to the taxpayer.

    Finally a judgement was made that I should no longer live in the family home as this was aggravating the marriage breakdown, and as the children’s natural mother and not in full time employment my wife has priority of residence in the house.

    So, I still had all my previous outgoings but had to find accommodation, pay for the house, children and wife’s upkeep as well as legal bills – it simply proved impossible to pay for this and so at first I stayed on a succession of friend’s floors, later I ended up out on the street living rough, effectively (but not legally) bankrupt.

    It was only through intervention of a wealthy friend that I managed to find temporary accommodation, a new job and legal representation. When I appeared back in court the Judge condemned me for the 1 month break in my correspondence and indicated he saw that as a sign of my lack of commitment to my children.

    At the final settlement my ex-wife had incurred £32k of legal fee’s paid by Legal Aid. The judge presiding over the final settlement day in court – who had previously no involvement in the case – ruled I was personally responsible for £15k of this, exacerbated by my absence from court for 1 month (2 weeks of which spent sleeping in a London car park).

    Automatic granting of Legal Aid is simply wrong. It does not take account of circumstance, encourages legal teams to rack up huge bills rather than encourage parents to resolve highly emotive issues surrounding children , and leaves (in my contentious case) a man in full time employment no realistic opportunity to gain legal representation without fear of huge financial ramifications.

    Something has gone very radically wrong with the UK legal system.

    English Joe

    Postscript: Just over 1 ½ years ago my ex-wife abandoned our four children after a failed and highly abusive failed relationship and the children are very happily living with me. I have since re-married and have a very full household of children. I now wonder why the settlement –which included my wife taking sole ownership of the family home with the mortgage being fully paid off – should not be reviewed given this change of circumstance.

    One day!

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