Relationship property division – how times have changed

Published by Vanessa Crosby on July 20, 2011

When the Property (Relationships) Act was introduced in 2001 it was heralded by some as the start of a new era in family law.

In was in fact a culmination of social and legislative reforms dating back to 1867. When we bemoan the position of women in society today it is worth remembering that less than 150 years ago divorce was only available by an act of parliament and then only of the grounds of adultery by the wife or adultery on behalf of a husband aggravated by bigamy sodomy incest rape cruelty or desertion for 5 years or more. At that time the only property protection the law provided to a wife was through the Married Womans Property Protection Act which allowed limited protection of a deserted wife’s property or earnings acquired after desertion.

Even 30 years ago the idea of sharing assets equally between a husband and wife was seen as radical. Lord Denning captured the mood of the time in one of his judgements in a 1973 case. In it he justified giving the husband more assets on the breakdown of the marriage as follows:

“when a marriage breaks up there will thenceforth be two households instead of one. The husband will have to go out to work all day and must get some woman in to look after the house – wither a wife, if he remarries or a housekeeper if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may to out to work herself but she will not usually employ a housekeeper. She will do most the housework herself perhaps with some help. Or she may remarry in which case her new husband will provide for her.”

This contrasts with a recent House of Lords decision where Lord Nicholls reflected what we would regard the current view within society and the view enshrined in our current legislation:

“Marriage it is often said is a partnership of equals… This is now recognised widely if not universally. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership unless there is a good reason to the contrary. Fairness requires no less.”

How times have changed!

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