In 1973 when the Matrimonial Causes Act was passed I was 15, I wore platform shoes and listened to Pink Floyd and life was very different. Now, at the age of 51, very little to do with divorce law has changed. When I look at the Matrimonial Causes Act, which determines how assets are divided on divorce, I wonder whether the law is still appropriate for modern times?

The MCA directs the Court to take into account a number of factors when a couple is getting divorced - length of marriage, parties’ ages, income, earning capacity, needs, standard of living, physical or mental disability, contributions and conduct.
The Court has a wide discretion in determining what is a fair settlement – consequently black and white rules are hard to find and divorce settlements often hover around grey areas.

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White v White (2000) - stipulated that there must be no discrimination between the money earner and the homemaker. The contribution to the marriage by both husband and wife is to be seen in equal terms. For today’s women who frequently work as hard as men, run the home and usually play the larger part in the care and upbringing of the children there is no place for the Court to recognise the multi-faceted roles women have and thereby their additional contributions.
MacFarlane (2006) - a solicitor had given up her successful career to raise a family. The Court decided that Mrs MacFarlane was entitled to look to her husband for a share in his future surplus income as she had damaged her career prospects whilst focusing attention on bringing up the family.
Miller (2006) - recognised there was an argument where property is acquired and retained separately during marriage that it should not necessarily be shared equally on divorce.
Whilst our mothers lived in an era where the majority of women were financially dependant on their husbands, now just under half the UK's workforce is female and 70% of married women work.
Increasingly women earn more than their husbands bringing assets to a marriage to which their husbands have made little financial contribution. As the role-reversal develops over the next few decades, women may find their spouse trying to end a short marriage to lay claim to assets which they have played no part in acquiring.
Unlike many countries (Europe, South Africa) Pre-Nuptial Agreements are not automatically recognised in the UK. Whilst the recent case of Radmacher v Granatino this year upheld the Pre-Nup, at present, no couple entering into a Pre-Nup in the UK can be sure that if it were to be tested in Court that what they had agreed between themselves would necessarily be upheld.
Now that women are more independent and often more highly paid than their spouse, should there be an automatic assumption that either party can look to the other to continue to fund their lifestyle? Of course there are exceptions as there always will be – the wife advancing in years and unable to re-establish a career or where one party’s ill health prevents them from re-establishing an earning capacity, but otherwise given women’s changed position in society serious consideration needs to be given to reforming the law to automatically recognise agreements freely entered into save where there are dependant children or circumstances which would render the agreement to be wholly unfair to one or other party.
The Law Commission is currently examining the status of Pre-Nups with a view to publishing suggested reforms in 2012 so the legal landscape may very well change in time to catch up with where we are right now!

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