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9th January 2024

Baroness Shackleton’s call for change: exploring divorce costs in English law

Baroness Shackleton’s call for change: exploring divorce costs in English law
Henry Hood
Henry Hood
Senior Partner

This week's main spread in the Sunday Times Magazine provided an in-depth and well-informed survey into the costs of divorce under English law. 

It is, of course, no secret that divorce proceedings often come with a hefty price tag, a sentiment echoed by the 'Fair Shares' report released in November by Bristol University and the Nuffield Foundation. 

According to that report, only 32% of divorcees sought legal services for financial arrangements with cost being the prime factor putting them off doing so, and 42% of those who didn't consult a solicitor cited concerns about the costs. This is certainly something that must be addressed and, as Baroness Shackleton rightly pointed out in the article, one of the main beneficiaries of this expensive legal process are the specialised and high-quality lawyers.

To remedy these escalating costs, the Baroness suggests key structural changes to the law, including the assumption of equal division of post-marital assets and pensions, time constraints on maintenance payments, and legally binding prenuptial contracts. These changes are noteworthy but do not address the more immediate need for more comprehensive reforms in laws governing couples and relationships that fall outside the traditional family structure.

In my experience, and therefore by definition when lawyers are involved, the existing financial remedy regime - though often costly - generally delivers fair outcomes for divorcing parties and allows for the courts to deal with each case on its own terms. 

By contrast, creating hard and fast rules such as exists in Scotland and other jurisdictions might result in cheaper proceedings, but also might produce court orders that too frequently parties will feel do not do justice to their specific circumstances.

The far greater need, in my mind, is for the legal system to adapt to the evolving dynamics of modern relationships, and this is where I think the Law Commission should be focussing its thoughts. 

The existing legal framework for cohabiting couples is inadequate and demands immediate attention as more and more parties separate before ever formally tying the knot, or never having any intention of doing so. 

Additionally, the complete absence in the legal system of a significant and comprehensive means of redress for unmarried mothers is a terrible deficiency, and one that risks deeming the English courts irrelevant and out of touch in the minds of those it exists to serve. The law must generally reflect how people wish to live their lives, and in the context of 51% of children now born outside of wedlock, it is not doing so. 

Neglecting these issues could erode public trust in the legal system, which is perhaps the greatest cost of all.