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"stupefying legislative ineptitude"

  • maggie
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19 Oct 09 #155430 by maggie
Topic started by maggie
Thanks to John Bolch :
www.familylore.co.uk/2009/10/stupefying-...tive-ineptitude.html
for this:
"What is required, Julius suggests, "is legislative reform of the criteria for asset and income division on divorce", although he does not indicate what form that reform should take. What overarching 'requirement' (or 'duty', to use the original wording of the MCA) should the court be given? I have to say that it is hard to think of a requirement that would fit every case and that would not be as bland or unpredictable as "fairness" - anything more specific would surely seriously fetter the discretion of the court. Or should that discretion be (largely) taken away by something like the community property rule that Baroness Deech is proposing?
Whatever the answer, let us hope at least that the addition of another powerful voice to the debate will help to encourage Parliament to finally grasp the nettle and deal with this matter that affects so many lives."

Someone right at the legal heart of the system denounces the system but can't set out any suggestion for reform?
Turkeys don't vote for Christmas?

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19 Oct 09 #155431 by Ephelia
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An excellent article - lets hope it does help fuel debate....

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19 Oct 09 #155440 by maggie
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Where's the unified voice of Wikivorce?
Leading the charge, Eph?
Is Wikivorce now part of the divorce industry?

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19 Oct 09 #155442 by Ephelia
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I'd be happy to be part of any debate on this subject - happy to help move a process forward...

I guess for many people on the site the subject is still to raw and personal, as they're still dealing with it on a day to day level but those of us through the other side, well we have the time to try and do something....

What would your proposals for change be Maggie?

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19 Oct 09 #155479 by hadenoughnow
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For what it is worth, I think the biggest problem we all face is that it is so ruinously costly to achieve a settlement where there is no agreement. The adversarial nature of our court system also seems to make things a lot worse - annd not just financially. There are so many variables in looking at the accumulated wealth of particularly a long marriage and the needs of children but arguing about every one is just not practical as things are.

In an ideal world it would be great to be able to have some sort of prenup as part of the plan ... but the problem with that is that things change.

When I was first married my career prospects were excellent; he was earning a good salary and we both had property. But 3 children had a negative effect on my earnings potential; he did not work for many years after losing his job and every spare penny I had was ploughed into the home and not my retirement fund.

It is impossible to predict what my situation would have been if I had not married and had children (although I do not regret them for one moment - they are a joy!). I guess I would have had a bigger income, very likely a decent pension and, had I kept it instead of selling up and putting the money into our home, a flat - or more - in London which by now would have been fully paid for.

His situation may be easier to work out; he would still have been an alcoholic; he may well have lost his home when he was made redundant and did not find other work but I suppose his pension (from his job) would still have been intact.

A prenup could never have adequately covered the situation - although ironically he walked away with his pension and a lump sum pretty much equivalent to the payoff he got when he was made redundant so I guess you could say he took out what he put in.

But to achieve that cost almost 50k in legal fees between us because of his refusal to consider reasonable offers (he was offered what he got months before final hearing)or to negotiate. A lot rested on what he considered his "needs" to be
(forgetting the children and mine) and on his claims about making a contribution when what he had done was no more than would be expected in a partnership - and I wasn't charging for my bit - (how do you put a price on childbirth x 3?).

I believe there has to be a way to ensure all possible measures are taken to reach a negotiated settlement - I believe arbitrators used to be involved in doing this - without recourse to the courts. Solicitors should be doing everything they can to reach agreement - and should be very clear from the outset about the options. It should be possible to refer potential agreements to the courts for guidance WITHOUT the expense of attending court with barristers etc in tow. Too often we hear people have agreed under duress at an FDR to something that later turns out to be unworkable. At the very least there should be a "cooling off" period - you get them with HP agreements so why not with something as imprtant as this. Or maybe a second opinion could be sought as with medical situations?

Going to court for a full hearing should be the very last resort and if it does happen because one of the parties is not being reasonable than I believe it should be easier to claim costs against that person (bring back Calderbank!) and possibly their legal team if they have encouraged an unreasonable stance.

I am not sure how the rules could be rewritten because every case is so different .. but a simple first step in all this would be to make the protocols involved in family law mandatory rather than just "nice to do" as they are at present.

Hadenoughnow

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19 Oct 09 #155488 by Elle
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The Swedish framework of time limits and fines is great but not as profitable for the legal practitioners!

Elle x

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19 Oct 09 #155493 by Forseti
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Can I just butt in and point out that people have been producing proposals for family law reform all over the internet for years. Some have even been worked up into detailed and 'joined-up' schemes. My proposals are elsewhere on this site so I won't repeat them here. Aren't we just re-inventing the wheel each time we discuss this? Wouldn't it just be better to finally agree a set of reforms (not easy but not impossible) and then back them until they are accepted?

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