Comments on "Common Defects of the Divorce Bill and Arbitration and Mediation Services (Equality) Bill 2016-17"

I read the article:


Common Defects of the Divorce Bill and Arbitration and Mediation Services (Equality)
Bill 2016-17



http://orca.cf.ac.uk/99619/1/Sharon%20Thompson%20and%20Russell%20Sandberg_Common%20Defects%20of%20the%20Divorce%20Bill%20and%20the%20Arbitration%20and%20Mediation%20Services%20Equality%20Bill%20%5B2017%5D%20Family%20Law%20447.pdf

This article (and others) appear on researchgate:

https://www.researchgate.net/profile/Sharon_Thompson16



"One of Baroness Deech’s most persuasive assertions is that her Bill follows a legal system
with proven success – Scotland. She argues England and Wales should seek to emulate
success of the Family Law (Scotland) Act 1985 by dividing matrimonial property equally and
by making prenuptial agreements binding. The 1985 Act’s effectiveness is supported by
Mair, Mordaunt and Wasoff’s insightful research, which indicates broad satisfaction among
Scottish practitioners with the legislation"

But, despite the "broad satisfaction," the authors attack the Family Law (Scotland) Act 1985 because it seems inappropriate to the authors in some circumstances. A few things are noteworthy:

1. Despite disparaging prenuptial contracts:

https://orca.cf.ac.uk/89315/1/Sharon%20Thompson%20In%20Defence%20of%20the%20Gold%20Digger%20final%20July%202016.pdf

the currrent article is an admission that default family law is not appropriate in all circumstances.

2. The Scottish Law allows binding prenuptial agreements, so that the law provides a way to modify the law in consideration of the circumstances.

3. The authors object to the Scottish Law even though they can freely negotiate modifications to address the circumstances that concern them.

4. What the authors apparently prefer is family law that, by default, addresses the circumstances that concern the authors while simultaneously forbidding prenuptial modifications to address circumstances that others deem unfair in the default.

5. "Indeed, limiting financial provision in a way that affects caregiving spouses reinforces structural inequalities between men and women in the family."  Scottish law would allow a prenuptial modification to alleviate this concern. But, the authors are against prenuptial contracts?

6. Note that prenuptial contracts can be worthwhile because of the very jurisdictional issues the authors raise. For example, although a woman might find the default family law in England suitable and appropriate to her circumstances, if she divorces in Scotland she would (apparently) be subject to a default family law that is far less generous to her.



So although the authors' own arguments indicate that default family law is not appropriate (see 5 and 6 above) in some circumstances, allowing people to negotiate modifications seems to be anathema to the authors. The preferred solution seems to be to have the government impose family law results that are so generous to women that it would be impossible to achieve those results by negotiation.  Indeed attorneys representing (non-moneyed) women are vehemently against prenuptail contracts (For example https://smolyhokes.blogspot.com/2016/10/comments-on-ten-things-i-hate-about_29.html ). This is excellent evidence that the attorneys believe that the default law is so generous to women that the attorneys could never hope to negotiate more, nor even as much.

Note that one common trick when disparaging prenuptial contracts is to state some "what if" circumstance that one perceives as a problem. Instead of viewing the circumstance as a point for negotiation, the trick is to label the entire prenuptial contract as "unfair" and refuse to negotiate on the "what if" items. With the entire prenuptial contract labelled as "unfair," the attempt is then made to revert to the default contract without bothering to discuss the "unfair" aspects of the default contract.

It boggles the imagination to assert that some family law contract is "fair" when what could not be achieved by negotiation must be imposed via the heavy hand of the government. It is probably no coincidence that women are generally more interested in marriage than men. Many men see marriage as the government imposing onerous financial obligations on them. In contrast, provided a woman marries a more moneyed man ("marries well"), she would seemingly have essentially no enforceable legal obligations toward him? Is it a big surprise that men are more "commitment phobic" than women?

With respect to men and marriage, the society often imposes almost tyrannical laws against men. Apparently too few people were getting married in British Columbia because of the negative consequences of marriage. Rather than change the laws so that marriage was not so awful a choice, so that more men might actually want to get married, British Columbia effectively forced unwilling men to be spouses. Once the heavy hand of the government forced men to be spouses, then the government could impose the onerous consequences of marriage that caused the men to eschew marriage in the first place. In British Columbia "no means no," except when a man says no to marriage. This seems very tyrannical?


https://smolyhokes.blogspot.com/2015/11/no-means-no-except-when-man-says-no.html