Senior lecturer’s work on divorce reform discussed in House of Lords
16 May 2018
The work of Dr Sharon Thompson has been discussed in a House of Lords debate on the Divorce (Financial Provision) Bill 2017-2019.
The Bill, a Private Member’s Bill introduced by Baroness Deech, proposes three main changes to divorce law: the equal division of net matrimonial assets, the curbing of periodical payments to a maximum of five years (unless this would lead to ‘serious financial hardship’) and binding prenuptial agreements (subject to standard procedural safeguards such as independent advice, cool-off periods and disclosure).
Dr Sharon Thompson, a senior lecturer in law at Cardiff University, is an expert on divorce, family property and prenuptial agreements. She is author of Prenuptial Agreements and the Presumption of Free Choice (Hart, 2015).
Her submitted evidence to the House of Lords was discussed in the debate on the second reading of the Divorce (Financial Provision) Bill 2017-2019 on Friday 11th May. Baroness Bottomley of Nettlestone commented that: “Improving predictability on the settlement process is a valuable outcome. But what about the distribution of effects that the Bill is likely to have for those in marriages where there is economic inequality between spouses, as in probably the majority of cases? All will have read the comments by Dr Sharon Thompson, of Cardiff University, who said that removing judicial discretion may prove disadvantageous for the economically less-advantaged spouse by diminishing the judicial flexibility to meet their needs through a division of non-matrimonial property.”
Dr Thompson has recently authored a number of articles that have been critical of the stance of Baroness Deech’s Bill including an article with Russell Sandberg on ‘Common Defects of the Divorce Bill and Mediation Services (Equality) Bill’ (2017) 47 Family Law 425 and ‘In Defence of the Gold-Digger’ (2016) (6) (6) Onati Socio-Legal Series 1225.
Her work argues that, although the reforms found in Baroness Deech’s Bill would result in legal certainty, the provisions would replace judicial discretion with fixed rules which would disproportionately harm women.
Dr Thompson commented: “Ring-fencing non-matrimonial property and removing judicial discretion from property adjustment would result in a double blow to the non-moneyed spouse because it would remove flexibility to divide non-matrimonial property so that spousal needs are met and it would remove flexibility to recognise the value of non-financial contributions to the family in long marriages.”
She continued: “Limiting periodical payments to a maximum of five years unless serious financial hardship can be established would provide a further blow to the non-moneyed spouse. The effect upon care giving spouses would reinforce structural inequalities between men and women in the family.”
Dr Thompson is also critical of the Bill’s provisions on pre- and post-nuptial agreements: “The Bill’s proposals on nuptial agreements are more extreme than in jurisdictions where such agreements are enforced. There is no facility to account for changes in circumstances after the agreement has been signed. The Bill’s provisions run the risk of exacerbating gendered inequalities between spouses both during marriage and on separation.”
The Divorce (Financial Provision) Bill 2017-2019 is to be considered next by a committee of the whole House of Lords on a day to be determined.