Divorce and Financial Remedies Under the Spotlight

Colin Davies, Senior Lawyer

The Law Commission recently produced a report reviewing the current law governing how assets are divided between divorcing couples.

The Law Commission is a statutory independent body that keeps the law of England and Wales under review and recommends reform where it is needed.

The report concluded that the current legislation, the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 does not reflect the developments that have been made through case law and the approach of the judiciary. The wide discretion exercised by judges means there can be a lack of clarity for individuals going through the process of divorce and their ability to anticipate the likely decision in court. The Commission also stated without a more comprehensive framework in place, this wide discretion could mean that disputes are more likely to arise between separating couples.

The conclusion of the Law Commission was that if the government did decide to reform financial remedy on divorce, this should involve both legal and procedural reform.

Various recommendations are made by the Commission. Firstly, this could involve codifying the current legislation with the case law developed since it’s inception, so the court can maintain their wider discretion but incorporating contemporary decisions to provide greater clarity.

Alternatively, it was recommended that a set of guiding principles could be published which would provide greater direction for judges and how to approach settling disputes between the divorcing couple.

Finally, a more significant reform could include implementing a default regime structuring how assets would be divided on divorce. Couples would know when marrying how their assets would be divided in the event of a divorce. However, this is unlikely as it would leave very little discretion for the courts to deal with the specific and individual circumstances of each case.

The report also addresses certain areas which would particularly benefit from reform. These include nuptial agreements, spousal maintenance, providing financial support for children over the age of 18, circumstances when behaviour should be considered, and pensions.

This work by the Law Commission is at pre-consultation stage and the government may not provide a full response to this report for at least a year. There is unlikely to be reform in this area of the law for several years.

For more advice on separation, divorce or legal assistance for families please contact the Family Law department on 0161 832 3434 or email info@kuits.com.