A Fairer Deal for the Common Man ?

An extract from  Men’s Aid response to the latest Law Commission Report, No.198  ( March 24th 2011).

“The people and the pursuit of happiness” versus “an elite and state-planned misery”

 In Jan 2011 the Law Commission published Report No.198 “MARITAL PROPERTY AGREEMENTS.” The report examined the future of pre-nuptial agreements and whether they have a role to play in the British legal system. Hitherto, pre-nuptial had been illegal and non-binding because they were considered “contrary to public policy.”  The followuing is an excerpt from a response submitted by Men’s Aid  comprising the Executive Summary and Conclusion. Men’s Aid’s full submission wil be made available shortly. The Law Commission’s full report can be acessed at:  http://www.lawcom.gov.uk/docs/cp198_press.pdf 

What is ‘contrary to public policy’ ? It might be helpful to begin by explaining this term in Englsih law. For a marraige contract (or any contract) to be valid and not void it must be freely entered into and not be the result of, for example, coersion, blackmail, duress or bribery. These are  “defective formalities.” Prior to Lord Hardwicke’s Marriage Act 1753 there were no formalities (pre-conditions) for a valid marraige. Public policy after 1753 included the requirement of ‘publicity’and free consent so that secret weddings and kidnap weddings would cease to be valid. Over time it has been ruled that an agreement between the parties not to consummate their marriage is void and ‘contrary to public policy’ (see Brodie v Brodie  [1917] P 271). Similarly, polygamy is not valid (see also Postscript at foot of page).

Executive Summary

The vision and the boldness of the Law Commission is to be commended. It is obviously adhering to its 1965 remit of clearing out obsolete and cluttering laws

The preceding decade has seen a variety of high profile celebrity cases where settlements have reached astronomical proportions (millions of pounds) which are quite unrelated to any reasonable want or need of the (usually) female spouse.

Divorce lawyers and the judiciary have realised this unedifying sight is not bringing them any public respect or admiration. It is lawyers and family solicitors who, since about 2007, have been calling for change (‘Overhauling of our divorce laws’, The Times, Oct 5^th 2007).

Conventional legal advice was that if you wanted to protect yourself by entering into a pre-nuptial agreement you could do so, but there was no guarantee that your divorcing spouse would be held to it, or that the court wouldn’t set it aside.[1]

The introduction of Marital Property Agreements (MPA) and nuptial agreement would appear to signal the end or at least negate the need for the Matrimonial Causes Act of 1973 (MCA). The raison d’être for the MCA to continue bearing down on, and being enforced against, divorcing couples falls apart.  

In that regard nuptial agreement must represent a step change from Sect 25 of the MCA 1973 (the ‘ancillary relief’ obstacle course).

It is intended that a pre-nuptial contract will override, or usurp, the normal powers of the Family court. The Law Commission refers to them as Marital Property Agreements or MPAs. They have the ability to place a ringfence around named assets and monies which the courts and divorce settlements cannot touch. The scope of this protection could be enormous. It could limit, for instance, the savagery of ancillary relief ‘larceny. It is envisaged that couples could enter into asset/property protective agreements before their wedding (pre-nuptial) and that already married couples would also be free to enter into similar agreements (post-nuptial).

The major question asked in the Report is whether or not ancillary relief should be reformed as a result ? Our answer is ‘yes’ it should and must. We would go further and support the argument for the ousting of courts from the whole process, i.e. adopt marital property agreements for ancillary relief, etc.

Couples are currently constrained to work with the shadow of the law looming over them. This situation would be transformed with the introduction of Marital Property Agreements. ‘Certainty’ would be restored to an area of the law where confusion has reigned for too long.

Marital Property Agreements (more commonly known as ‘pre-nuptial contracts’) are a comparative novelty in the 20^th and 21^st century but were previously not uncommon, e.g. in the 19^th century.

As a consequence there will be a ‘learning curve’ for all concerned (inc. professionals and divorcing couples). Not all the contingencies can be predicted. We must be prepared to make minor alterations and expect to firm-up criteria, not initially but as experience is gained.

We must also be prepared to let go of administering people’s lives in detail (micro-management), which has been the hallmark and mindset of institutions in the late 20^th century.

Mediaeval ecclesiastical sources corroborate that it was not uncommon for a wealthy man to agree to settle around one third of his wealth on a former wife. Spousal separation – but by death – gave rise to the dowager’s share as her son inherited the title and estates and was again about 30% of the dead man’s estate or rents in lieu thereof as ‘maintenance’.

This rule of thumb apportionment was used up until the 1960s and was only changed by the MCA 1973 which increased the proportion due a divorced woman to 50% or any reasonable figure above that figure which it was thought was needed to maintain her.

The dowager share was, of course, of little consequence to field hands and the urban poor for over 600 years since 30% of what they possessed amounted to pennies. However, the material affluence of the post 1945 era changed all that.

Pre-nuptial contracts offer the citizen an unprecedented opportunity to seize back control of his and her own destiny. They epitomise free will and the free choice of both parties to form a binding pre or post-nuptial agreement that will apply to them and them alone. It is vital that this free choice smash any fetters from the previous era of centralised administration.

In conjunction with the Consultation Paper’s view, we can envisage Matrimonial Causes Act 1973 especially Sect 25, Sect 34 and Sect 34 becoming obsolete overnight. The ability to control and determine maintenance agreements (MCA, Sect 34), would fall into line with DWP thinking concerning individual couples negotiating levels of child support payments. In the case of the DWP it is heeding the Henshaw Report’s recommendations and in the case of the latter it would be complying with the aspirations of the Law Commission for “autonomy.” (See also XXX).

The Law Commission always refers to  nuptial agreement as “Qualifying Nuptial Agreement” meaning that they must contain certain elements. In our opnion, qualifying nuptial  agreement should not be hamstrung in any way. It will be logical for a qualifying nuptial agreement to contain a range of assets including a marital property agreement and for such agreement to span the post-marital disposition of assets, money and wealth.

Freely entered into contracts should also be capable of determining the level of spousal and children support /maintenance together with qualifying conditions. The content of the agreement can / should also incorporate dissolution provisions.

The point is well made by the Law Commission regarding protecting family companies from the ravages of ancillary relief. They have suffered disproportionately in divorce settlements with some going into liquidation and others being forced heavily into debt.

Some fears have been expressed regarding non-disclosure, accuracy of disclosure, and the waiver of rights to disclosure. However, we feel the Law Commission has dealt comprehensively with these different fears.

The Law Commission points out that the management of disclosure – as already experienced by those practitioners currently engaged in pre-nuptial agreements – closely resembles current negotiations for ancillary relief. This departure into pre-nuptial contracts should, therefore, not impose requirements for a new skill set or represent a new cost disincentive.

The single biggest change will be that pre-nuptial contracts will no longer be of questionable validity in the family courts – as had hitherto been the case. Under ordinary ‘contract law’, the contract freely entered into (MPA) will be binding on both the parties and not (ordinarily) subject to court interference. Where one party is handicapped or disadvantaged in some way, i.e. did not receive legal advice, then again under ordinary ‘contract law’, a binding contract will not have been formed.

Disquiet can be detected and is felt keenest among those of limited income if they each have to seek out their own ‘legal advisor.’ This ‘unnecessary’  (meaning avoidable) cost may well put a brake on the ‘take up’ of nuptial agreements but this is not insurmountable.

We can see the argument for a qualifying time period which could allow parties to reflect and consider their agreement clauses. However, if the Law Commission believes this serves no useful purpose we would acquiesce on the matter.

Allowing nuptial agreements to be set aside or varied as the Law Commission implies on several occasions, defeats the purpose of nuptial agreements and kills off “certainty.” Only in extremis should courts have the power to set aside  or vary clauses. Society and the Law Commission must reject the presumption that life is risk-free. It is not. With or without contracts, risk and hardship occur.

Safeguards should be explicitly defined in any pre-nuptial contract to minimise the need for court intervention, specifically, provisions agreed by the parties for fairness and equality provisions.

Overall, the Law Commission has set out a paper with such eminently sensible proposals that it commands our support.

Addendum:

There is one complication that has not been mentioned so far and which may have severe implications on the how the Consultation Paper turns out. The complication is Elizabeth Cooke (pictured below), who has recently been appointed to the Law Commission. Ominously, she has responsibility for property, family and Trust law (http://www.lawcom.gov.uk/property.htm). Formerly of Reading Uni. she has co-authored books with Anne Barlow and Brenda Hoggett (now Baroness Hale). 

In addition, her most notable books carry the titles: 

• “The Land Registration Act 2002 and the nature of title”
• “Cohabitants, Common Intention and Contributions”
• “Community of Property – A Study for England & Wales” by A. Barlow, T Callus and E Cooke (2003)
• “Land Law” (Oxford UniversityPress, 2006)
• ‘Community of Property: a regime forEngland & Wales’ (Nuffield Foundation, 2006): research report co-authored with A Barlow and T Callus)

At meeting held atPortcullis House, on March 31^st  2009 between MPs and legal professionals ‘community property’  laws of the sort operating in the US were mentioned as an alternative to our present Land Law system. The one reformist speaker, Elizabeth Cooke, with most experience of land law and community property laws was not at all enthusiastic towards the latter.

Questioned as to the reasons for her reluctance she never stated the nature of her reservations but she accepted it brought with it other “complications.”  Could it be that property division along community property lines would actually limit larceny by the courts and leave divorced men with some/more assets than at present ?

Conclusion

The vision and the potential to recast the future contained within Report No. 198 puts it head and shoulders above all other recent Law Commission reports.

With this in mind 2011 might well prove be the year when the philosophy of statism, the monolithic straightjacket of the state inflicted on a passive (or resisting) society is finally broken not only across the Arab world but in Britain too.

Georg Wilhelm Hegel’s view (b.1770 – d.1831), of the historical inevitability of modern institutions personifying the modern nation state is an ideal overturned by this Report. The Hegelian ideal that sovereignty and idealism ranks above the people who constitute the nation is coming to an end.

In matters matrimonial and dissolution we have not, in the past, been overly impressed by the Law Commission’s approach or its moral value systems. We recall the destructive influence exerted by self-confessed feminist Brenda Hoggett in the 1980s and 1990s as the Law Commissioner in charge of family law.

However, on this occasion we have to concede that the ideas contained in Report 198 sets it on a par with the repeal of ‘breach of promise’ (HC 453), Report No 26.

Messianic views, which on occasion had appeared to overtake the family law section of the Law Commission during the 1980s, now appear to be repudiated by this latest Report (No 198) into MPA, specifically we cite this as one of many examples that used to influence policy:

• “Family Law no longer makes any attempt to buttress the stability of marriage or any other union …. Logically we have already reached a point atwhich, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose”. [2] – Brenda Hoggett.

In our view it is commendable that the Law Commission has gone back to its 1965 roots, namely that of clearing out clutter and obsolete legislation that is no longer relevant or useful to society. The Law Commission should be applauded for its bravery.

We therefore welcome the introduction of nuptial agreements.

But is this a lasting epiphany ? We suggest that literally millions of men, and (we suspect) millions of women, would appreciate knowing where exactly they stand with regards matrimonial separation.

There will be those for whom the concept of nuptial agreements is so new that it will induce trepidation or even rejection. It will be difficult for some to throw off the shackles they have become so accustomed to wearing. However, the advantages of pre and post-nuptial contracts will soon become evident and the reservations will thus fade.

The onus is on the Law Commission to make laws simple, straightforward and understood by the great majority of the population. Pre-nuptial agreements (contracts) achieve this aim.

Should this Consultation Paper fails on every aspect but one in its endeavour, let it succeed in the abolition of ancillary relief (section 25) hearings in their present format.

It is a pity that reform of ancillary relief and a review of Sect 25 is not fully within the scope of the present Consultation Paper (Para 5.64 and 5.65).  In our view reform or abolition of Sect 25 for it is long overdue. However, it is so contentious an issue that it is perhaps better to let sleeping dogs lie.

With nuptial agreements legalised and/or recognised by the courts then de facto Sect 25 falls by the wayside.

Divorcing adults are constrained to work with the shadow of the law looming over them. Reminiscent of poker players neither party is likely to voluntarily show their hand knowing that the Matrimonial Causes Act 1973 applies. Each is under duress not to settle for anything less than is theoretically obtainable under law.

‘Gambling’ in these circumstances is, we suggest, more likely to bring forth the “unconscionability” and “unfairness” element that the Law Commission appears to fear. We suggest adopting Marital Property Agreements (MPA), would actually put an end to this scenario.

We also share the alternative viewpoint that adopting MPAs (Marital Property Agreements) avoids the need for a structured formal review of ancillary relief at a later date (and avoid the tax-payer further expense).

The private ordering of one’s own life (free of state intervention), we see as a monumental departure from previous invocations (see Hegelism above). The ability to exercise a degree of latitude in one’s own destiny is a very mature acceptance that Society today bears little resemblance to immediate post war period of regulation by the state.

We see direct parallels between nuptial agreements and the marriage ceremony. The latter has to be freely – but not lightly – entered into by couples. We, therefore, see no need for special protection for the same couple to enter into pre or post nuptial contracts (versus a marriage ceremony), given that it is governed by contractual law and the caveats of disclosure, frauds and coercion  – all of which have been thoroughly dealt with by the Report.

Theoretically, there are a million possible pitfalls when contemplating marriage but the reality is that few of them ever materialise. Equally, there are theoretically a million possible reasons to seek a divorce but, in actualtie, again there are but a handful of void and voidable marriages.

Hardly a social or legal reform document passes, it would appear, without the inclusion of the Married Women’s Property Act 1882 (or the preceding Acts). This consolidation Act benefited only a handful of wealthier women in England at the time, say 10%. It was, therefore, more symbolic and not the great breakthrough it has always been portrayed as representing. The Law Commission is, therefore, not alone in perpetuating this mis-information and of making the fundamental error in wrongly concluding that “relatively few married women were in employment” (see Fig 3).

That might have been true of 19^th century middle class women but never working class women, i.e. the majority of women in the population. One has only to recall the Coal Mining Act 1842 which removed all women from mines – or the Liberal government of Asquith which introduced a series of social reforms prior to 1914. Asserting that relatively few married women were in employment is, at best, misleading.

We are accustomed today for 50% of the workforce to be composed of women. In 1939, whenBritainhad a population of 47.7 million (47,762,000), there were about 24 million of men and women of all ages (0 to 80+). Of these, 11 million men and 4 million women were paid employees. This ratio, as can be seen in the Table above (Fig 3), altered from 1 woman for every 3 men employed to 1 in 2 by 1952 (7 million women v 13 million men).

Women in domestic service are not shown in Fig 3 but would represent in 1882 approx. 1 million additional lower class but uninsured women employees. The decades leading up to 1939 saw numbers fall and almost disappear by 1945.

In the vein of the 1882 reforms, the Law Commission runs the risk of focusing too much on those with property and ignoring those with little or none. There is a danger of playing to a perceived audience without first checking the facts.

The Married Women’s Property Acts 1882 may only have been useful or addressed the needs of 10% of British women. The reforms outlined in Report No 198 – though desperately needed – may fall foul of a similar criticism. Reform comes on the back of high profile cases involving millions of pounds. We therefore reject the remarks contained in Para 2.11 as not only inaccurate but unfounded.

The opinion that, “marriage, by itself, has no effect at all upon property ownership”, does not appear to have impacted on the way in which courts deal with matrimonial property. To many this will come as a revelation because it is not how the courts have conducted themselves or justified their behaviour.

Are we to now believe that family courts have been misappropriating property, acting ultra vires, or confiscating it under the guise of legally, all along ? If this is the implication it seems too late and a moot point for millions of citizens.

The other revelation by the Law Commission, namely that maintenance has not been overhauled since 1857 is a damning indictment and should give every impetus to the acquisition and implementation of pre-nuptial contractsat the earliest possible moment.

A modern society cannot be burdened with an 1857 mindset.

The clinching arguments for switching to pre and post nuptial agreements and away from MCA 1973 are that it would; a).provide for certainty, b). autonomy and c). bolster marriage, ata time when it is realised that the falling marriage levels do not bode well. [3]

However, we should not forget thatin “The Field of Choice” (Cmnd 3123), the Law Commission proposed that its reforms had the following seven attainable objectives:- [4]

Marriage has been everything but buttressed. Critics would say the Law Commission failed in all its objectives and the only ones to have enjoyed relative success were, 2/. to enable the ‘dispatch’ of empty marriages, and 6/. to protect the economically vulnerable wife.

So should we, as a consequence, be wary of future Law Commission objectives / proposals ?

Is the 1857 mindset, or the Hegelism mentioned above, in evidenceat item 6 above which presumptively seeks to protect the economically vulnerable wife ? If it is, then it has crushed item 7 which seeks the respect of the public.

“Putting Asunder”, (pub. 1966), was the Archbishop of Canterbury’s alternative view to the Law Commission’s paper (The Field of Choice). The church sought a ‘post mortem’ for each divorce. The Law Commission, perhaps predicting the high level of demand, resisted any meaningful ‘inquiry’.

With hindsight we can see that the Law Commission won the day but in advancing pre-nuptial agreements which could contain clauses relating to dissolution (the when, why and how etc), we could be adopting the rejected conditions alluded to in “Putting Asunder.”

We are pleased to see that vulnerable family companies are now able to protect themselves from gold diggers (Para 6.71 and 5.53). Firmer steps may be required to close off attacks which might allow a party to profit from any future income increase.

A prime but non-company example of this is that of Ray Parlour the footballer. How can it be ‘equitable’ that a non-family member should share in his talents and success after divorce ?

Only Thorpe LJ (2004) could have concluded it was, “wrong for the earner to have sole control over that surplus during the next four years.” More Hegelism ?

Divorce should carry with it a degree of certainty if it is a legal process that is to remain respected. The state and their servants, i.e. the courts, must cease infantilising citizens. The autonomy of the common man must be respected. 

a). Certainty – We have been a long-standing commentator of ancillary relief, complaining that it was such a hit-and-miss affair and so uncertain that a better regime needed to be found.

Reaching an agreement by use of an agreement seemed to us better and less stressful to both parties concerned. We estimated it might also be much quicker and cheaper. This, we are pleased to report, is what the Report now seems to accept.

When a relationship ends it is vital that certainty exists and that prior to that divorce certainty also exists in advance of the event. Pre-nuptial agreements, we feel, can supply that certainty. When there is no certainty (as under the MCA 1973 provisions), a cat and dog fight is always on the cards.

It is in no one’s interests to have open ended financial liabilities or be subject to financial agreement that can be re-opened at will. Divorce is already a costly exercise and the idea of avoiding protracted litigation costs is to be embraced whenever possible. Similarly for custody, where legal fees and court time can sometimes exceed divorce costs. The need for certainty is essential and a timely reccomendation.

Pre-nuptial agreements can stipulate the ‘why’ and the ‘wherefores’ – how much time is spent with each parent and rotas agreed. Decisions such as sole or shared parenting can be agreed and the sharing, or not, of Child Benefit payment can also be encapsulated within MPAs.

A number of cases have, since 2006, set new precedents and undermined the received wisdom vis-à-vis property and maintenance. The once sturdy principles governing ancillary relief today look decidedly shaky. The unresolved issues arising form recent cases can be adequately and fairly dealt with by introducing pre and post-nuptial contracts.

The vast majority of divorces (as the Law Commission’s report states) involve couples with either no assets or very few. The Law Commission’s attitude (Para 5.36), might be interpreted as letting the poor fend for themselves and of concerning themselves only with the wealthiest 10% in society.

On that basis we have to disagree with the Law Commission in its appraisal of how money and assets of the poor (those on low incomes) should be allocated. It is too simplistic and too onerous on low income earners to leave the matter at presuming the bulk of any ‘wealth’ will go to the former wife and children, or that the children should be prioritised.

The Law Commission perhaps forgets that arguably this perpetuate the encouragement to divorce -bearing in mind that in most countries including Britain, over 70% of divorce petitions are brought by women (see also age / divoerce expectations in Japan, ref. graph above).

“To meet the needs of the parties insofar as that is possible” (Para 5.36), is code for money transfers and wealth re-distribution from the man to the woman. Put another way, husbands are to be cashed-in as if they were a maturing insurance policy.

Wealthy women tend not have their assets and money ‘re-distributed’ to the man they are divorcing and one has to ask why ? A husband wanting to cash-in his wealthy wife meets with little success. Is this just a coincidence ?

This MPA (Marital Property Agreements), paper No 198 has given due consideration to matters related to conduct, fairness, disclosure, injustice, etc. It is therefore only fitting that the reciprocal be advanced as to whether or not the children should be prioritised ?

 This question has never been fully answered or justified given that the poverty of second marriages is worse than for the first family and that the whole purpose of the 1969 divorce reforms was to make remarriages not only possible but attractive. Ironically, as the graph below depicts, remarriages were running ahead of divorces before the 1969 reforms and the upward swing from 1956 to 1969 became a stuttering plateau.

Prioritising to the Nth degree children of the first marriage, therefore, has stultified this ambition and the results can be seen in the torpid trend line for remarriages (Fig 4).

The thinking of  behind prioritising the first family does not reflect the fact that the DHSS criteria in the 1970s switched from ‘contributions’ based benefits to ‘needs’ based benefits. Post-Finer Report, a woman no longer had to show a contributions record but simply show she was ‘in need’ of support.

The thinking also does not reflect the popularity, following the 1969 reforms, of cohabiting or serial monogamy after divorce.

Government and the Law Commission must come to realise that expecting a working mother not to go out to work simply because she is now divorced is incongruous when she went out to work and supported herself prior to the divorce. Fortunately, government at least has adjusted its position on this.

With shared parenting on the legislative drawing board and thus day-to-day care of children split, the need for prioritising the first family’s needs diminishes. The first wife will find she can more easily go out to work. We therefore forcefully reject the statement that, “There are no other possibilities” as ill-founded.

b). Autonomy – We find ourselves fully in agreement with the Law Commission’s proposals validating the right of the individual to self-determination. We see this as step change in how the state treats its citizens (Para 5.24 – 5.26).

We strongly support the argument cited in the Law Commission’s proposals that the most frequently heard reason in favour of reform is the ‘autonomy’ aspect.

We can add nothing to the views contained in Para 5.24 (i.e. ‘husband and wife are stuck with equality, however inappropriate they may both agree it to be and you must leave it to the judge who dissolves the partnership’).

If the proposal to validate pre and post-nuptial contracts provisions is adopted then society irrevocably moves into the secular world where marriage is no longer a covenant but a contract.

We share the judicial and Law Commission view that the law of ancillary relief is paternalistic and that not only is it “inappropriate in a modern world” but it doesn’t work.

It has long been our view that ancillary relief is, indeed, “patronising, in particular to women” and we agree with Lord Justice Wilson’s observations regarding ‘starting point’ and accepting the consequences.

Reservations centered on undue pressure or coercion which occur constantly in the text can be counteracted by imposing certain pre-conditions for the validity of a nuptial agreement to be binding. The taking of legal advice (Para5.30), for instance, should assuage many of these reservations.

c). Bolster marriage – It is interesting to learn that both advocates of reform as well as those opposed to it argue that ‘their position’ supports the institution of marriage. Can both be right ?  In our view, certainty together with autonomy can only have a beneficial influence.

A rapid travel back in time using statistics might reveal the truth of the claims. The graphs below show whathappened to marriage numbers when the new divorce legislation was enacted.

Following the 1969 reforms – which at the time were said to have only a short term effect on both marriage and the numbers divorcing – divorce was immediately impacted and but so too was marriage and arguably it has also never recovered since (Fig 5).

The Divorce Reform Act 1969 was enacted in 1971 and that year saw a significant fall in marriages and the setting of a long lasting downward trend.

The onset of disillusionment and distrust of the judiciary appears to begun very early and gained pace. To this end the confiscatory examples set by Ormrod and Denning (manipulation of the Land Charges Act 1972, the creation of a beneficial interest etc) were unhelpful.[5]

We agree with proponents who believe couples are dissuaded from entering marriage because only disincentives exist. The pernicious nature of ancillary relief has by now passed into urban folk lore and acts as a powerful deterrent.          

We are not convinced by the line of argument that there is nothing to prevent open discussion of property matters before marriage (Para5.21). The telling time is when the relationship falls  apart.  

 Promises and agreements reached in an idyll stand little chance of being         complied with in ancillary relief hearings (or similar), unless they have been committed to in writing.

Were the family courts to operate in the manner the Law Commission’s paper envisages there would be less room to manoeuvre but the fact is the courts are secret and immediately that proceedings begin both the spirit and the letter of the law are abandoned.

Denning made a useful contribution when he said in any court case it was the judge who was on trial and not simply the defendant. Making transcripts available to the public would reveal how derelict the family courts have been in their lack of reasonableness, fairness, equality and justice required under Sect 25 (ref. ‘reasonable requirements’), e.g. Thorpe bizarrely ruling that bigamy laws were to protect only women and could not be relied on by men as a defence against a bigamous wife.

We have not differed with the Law Commission’s overall views in this Consultation exercise but we strongly disagree with the suggestion that pre-nuptial contracts will deter marriage and / or encourage divorce.

Given the high status of marriage in the 19^th century, when pre-nuptial contracts were more widely used, we do not see their use leading to a devaluing of marriage. Indeed, quite the reverse.

To conclude: professor J K Galbraith’s book The Affluent Society (1958), became both a best seller and a classic. Galbraith traced the major currents of American economic thought in the 20^th century, particularly the influence of Social Darwinism and Marxism.

The relative elimination of extremes of economic insecurity, Galbraith argued, led irrationally to production becoming the foremost concern in economic thought.

The advent of quick, cheap and painless divorce as the foremost concern of the 1970s mirrors closed economic thinking after 1945. Re-distribution of wealth through divorce is not a panacea without consequences in the same way that Galbraith pointed out that the dash for production carried with it a substantial price tag penalty.

END

Postcript:

• The court will weigh up any financial hardship arising upon divorce against the public policy of dissolving a marriage that has clearly broken down. See Mathias v Mathias [1972] Fam 287. 
• Grave financial hardship may be offset by a consideration of social security entitlements available to the respondent. See  Reiterbund v Reiterbund  [1975] Fam 99.   – ‘Family Law’ Robert Jago, http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/family/family_ch1to4.pdf

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 Footnotes:

[1] The Times, October 5, 2007 http://business.timesonline.co.uk/tol/business/law/article2595064.ece

[2] ‘Ends & Means: The Utility of Marriage’ Hoggett B, 1980 (aka Lady Justice Hale, and later a Law Commissioner responsible for ‘family matters’).

[3] The consequences of non-marital living (because of low fertility rates v married couples), are increased social service costs in old age, lower living standards, a lower ‘tax take’, an increased NHS burden, a pensions dilemma and greater Treasury expenditure.

[4] Law Commission Report No 6 (1966) and the Royal Commission, aka the Morton Report, 1956.

[5] See ‘Sword and Wig’ by Lord Justice Robin Dunn for a commentary of these manoeuvrings.