Marriage is a calculated risk, so why not have a divorce calculator?

It's a simple question that calls for a simple answer. Should it be easier for couples to determine with greater certainty and at an affordable cost how their assets should be split on divorce? There is, really, only one answer: yes. So why some lawyers are scaremongering about the Law Commission's proposals is a little puzzling.

Most of the attention has focused on prenups, which the commission says should be binding subject to a number of conditions, including fairness. Thankfully there seems to be a broad consensus that this is generally a good idea. Marriage, after all, is not just about roses, it's also about wealth management and efficient tax planning. And it can go wrong. The prenup is the insurance policy you could pull out of the drawer if things don't work out as expected.

This makes the reservations about other proposals in the commissions's recommendations all the more surprising. For couples that don't enter into a prenup, the law would remain unchanged except for guidance on how financial needs would be assessed. Most of the criticism has been targeted at a divorce calculator which would allow couples to work out how their assets should be split based on a number of factors.

It is based on the Canadian system, where it seems to be successful, but some say this would dehumanise the process at a time when emotions are high. Divorce litigation is about broken trust, feeling cheated, seeking revenge, and it's often about how much money you can get or keep. When marriage is falling apart, the last thing you want is emotions to dictate the solution; a calculator is an eminently sensible idea. People with more money than sense could always decide to spend their cash on years of acrimonious litigation, as they do now, and be rebuked by judges for doing so, as they are now.

For more impecunious individuals prepared to settle their divorce in a more pragmatic manner, the calculator would provide an objective, neutral starting point. It would take account of the length of the marriage, whether one spouse has been the main breadwinner, whether the other has given up on a promising career to bring up the children, are there realistic prospects they could return to work, etc.

All these are arguments and factors that judges already take into account. With the calculator, these would be considered with greater consistency across the whole of the family justice system. It would also give the growing numbers of litigants in person a basic framework for their discussions.

There is no suggestion in the Law Commission's report that the calculator should be statutory or binding, and work would only start if there is sufficient evidence that it could be made to work in the context of English family law. That, perhaps, is the greatest obstacle to its adoption. Without momentum behind it, this could be another Law Commission recommendation being left to gather dust. So instead of worrying about non-issues family lawyers should put their weight behind it and make sure that it doesn't end up on the shelf.

 

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Jean-Yves Gilg is editor of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk

 

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