On the follies of Family Law

In the UK, the body of law that relates to the family is dramatically outdated. A couple of examples:

1. A mother automatically acquires parental responsibility for a child as soon as a child is born. Unless the mother and father married the father would not get parental responsibility automatically. The father would need to enter into such an agreement with the mother directly or make an application to the court to get responsibility. In simple terms, a man could get a woman pregnant and the women could take the child anywhere and exclude the father from seeing that child entirely at the mother's own discretion and without the father having any automatic rights to influence this. Of course, the father is likely to contribute financially for their child since the Child Support Agency and others exist to ensure that, meaning they have costs but not benefits. In nearly any other case for anything, payment would confer some right to input or determination of matters.

At least under the terms of the revised Adoption Act, where a father's name is inserted as the father on the birth certificate of the child he will get automatic parental responsibility.

2. Prenuptial agreements are not legally binding. A pre-nuptial agreement is a contract between a man and a woman which sets out some of the financial matters such as asset entitlement and splitting in the case that the marriage subsequently breaks down, as they so often do. Prenuptials only become relevant once the man and woman have married each other. Since they are not legally binding, at best pre-nuptial agreements may influence the court's discretionary approach. There are several things that can be done to increase the credibility of a pre-nuptial agreement such as making sure both parties have independent legal advice and ensuring the agreement is made more than 21 days before the wedding takes place, and going through a financial disclosure process so that both parties know each other's wealth in detail before they get married.

Because these pre-nuptial agreements are not legally binding, case law precedent becomes more important, such as White v White in 2000. In this case, one particular judge stated that pre-nuptial assets can be ring fenced thereby preventing them from being treated as assets capable of division. The judge stated: 'property acquired before marriage and inherited property acquired during the marriage come from a source wholly external to the marriage. In fairness where this property still exists the spouse to whom it was given should be allowed to keep it.' At least that is something since I don't believe that all assets should be treated the same since particularly these days when people in general marry later and divorce sooner, they may have assets before the marriage which should not be divided equally if they are to be distributed equitably.

These are just a couple of instances that I came across personally but I am not a lawyer so I don't know whether the rest of UK family law is as badly formulated as this. I was absolutely stunned and amazed after meeting with my lawyers that this was the current situation.

The father should have equal rights and pre-nuptial agreements should be legally binding. The law should work with the reality of society and economy and not cater to a religious and cultural pipedream of lifelong marriages that are no longer commonplace.

 

Author: Simon Buckingham

What do you think?

To make a comment to the author, send e-mail to simon@unorgan.com