In a rare criticism of a bill that is currently making its way through Parliament, Lady Hale said it would cause lasting damage.
Under the Divorce (Financial Provision) Bill, pre- and post-nuptial agreements would become binding, subject to certain conditions.
It would also result in the equal division of matrimonial property, with spousal maintenance payments limited to five years, unless the spouse would otherwise suffer serious financial hardship.
But Hale has questioned the “one-size-fits-all” approach of the bill, introduced by the crossbench peer Baroness Deech, inset, and said that in many, if not most cases, there was inequality between spouses.
Responding to critics who argue so-called “no-fault” divorce legislation would weaken the stability of marriage, Hale argued Deech’s bill would have an even more ruinous impact. In her address to the International Centre for Family Law, Policy and Practice, she said: “More threatening in my view is Baroness Deech’s bill, which has made its way through the House of Lords and is now before the Commons.
“I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions. But I question how one-size-fits-all can possible meet the justice of the case or fulfil the role of the family in shouldering the burdens which it has created rather than placing them upon the state.”
In the speech, published by the Supreme Court, she added: “I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases.”
Deech’s bill had its third reading in the Lords in December. It is now before the Commons, though no date for a second reading has been set. Hale, a longstanding advocate of divorce law reform, said the UK government’s Divorce, Dissolution and Separation Bill “bears a remarkable resemblance” to proposals by the Law Commission as far back as 1990. Hale’s remarks won support from women’s groups in Scotland.
Emma Ritch, executive director of Engender, Scotland’s feminist membership organisation, said: “We agree with Lady Hale that women’s inequality begins at home.
“Women do disproportionate amounts of childcare, housework, and care for disabled and older people.
“Women have less access to household resources and are more likely to go without to see that others’ needs are met. Epidemic levels of domestic abuse are the clearest indicator of a gender power gap in heterosexual relationships.”
She added: “Many of these inequalities are not taken adequate account of in family law. Indeed, we see a failure to fully recognise the reality of women’s lives in legislation and policy from social security to transport.
“Lady Hale’ s distinguished legal career has consistently sought to bring women’s lived experience within the legal establishment.”
Sarah Crawford, lead solicitor at the Scottish Women’s Rights Centre, said Hale’s comments “corresponds” with the organisation’s experience.
“In the majority of our contacts with women, there is a lack of equality between spouses or partners, with women often appearing to be financially disadvantaged for a variety of reasons,” she explained.
HOW THE OTHER HALF…
Bernie Ecclestone and Slavica Radić, 2009: Formula One executive Bernie Ecclestone, one of the richest people in the United Kingdom, divorced Croatian model Slavica Radić in 2009.
The settlement was estimated at £0.95billion, and although the details aren’t completely clear, there appears to be an unusual twist – Radić seems to be the one paying Ecclestone.
Documents show that since the divorce in 2009, he has received an estimated £60 million a year from her trust fund.
Mr Ecclestone, 83, was married to Slavica, his second wife, for 24 years until their divorce in 2009 on the grounds of his “unreasonable behaviour”.
He married his third wife Fabiana Flosi in 2012. He was 82 and she was 35 at the time.
Mel Gibson and Robyn Moore, 2006 : The settlement between actor Mel Gibson and Robyn Moore remains the largest Hollywood divorce payout in history. The settlement totalled half of the actor’s net worth at the time.
Alec Wildenstein and Jocelyn Wildenstein, 1999: French-American businessman and art dealer Alec Wildenstein divorced his wife of 21 years, Jocelyn Wildenstein in 1999. The proceedings resulted in Jocelyn being awarded £1.99 billion and £80 million for each of the next 13 years, according to People.
Rupert Murdoch and Anna Torv, 1999: Media mogul Rupert Murdoch and journalist Maria Torv were married for 31 years and had three children together.
They agreed an “amicable separation” in 1998. While details of the settlement are private, it has been reported that Torv received £1.35 billion. Murdoch married Wendi Deng 17 days after the divorce, while Torv married William Mann six months after.