With 50-year-old matrimonial laws currently being reviewed, we look at what the future holds for the resolution of financial matters arising from divorce.
Why is there a proposed reform?
With financial matters of divorcing couples being governed by the dated Matrimonial Causes Act 1973, the Ministry of Justice have now instructed the Law Commission to conduct a review of the efficiency of the current law. They will look specifically at whether it provides a fair and consistent outcome for divorcing couples, or whether the half-a-century year old framework is in need of amendment.
What element of the law is subject to proposed reform?
The Law Commission will review the following areas when considering need for reform:
- The discretionary powers given to judges over the division of financial assets, and whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples;
- Whether there should be wider powers given to the courts to make orders for children over the age of eighteen;
- How maintenance payments for an ex-spouse or civil partner should work.
- What consideration the courts should give to the behaviour of separating parties when making financial remedy orders;
- Orders relating to pensions and whether they are overlooked when dividing the divorcing parties’ assets;
- The structure of the system for making regular financial payments from one person to another after divorce;
- The factors judges must consider when deciding which, if any, financial remedy orders to make.
Elizabeth Brown, Trainee Solicitor at Staffordshire Family Law, considers what potential reform would likely be advantageous:
“The laws governing the division of financial assets on divorce should be as clear as possible, and provide each party with some amount of certainty during one of the most stressful points of their lives. The current discretionary powers afforded to judges allow them to decide what is the fairest outcome in the individual circumstances of that particular case. However, this is a subjective test and different judges will arrive at different outcomes. This makes it difficult to predict what order the court will make, and the lack of clarity can lead to longer and more expensive disputes between the divorcing couple. If the court’s powers were more clearly defined within the law, this would minimise conflict between the parties. There is currently a checklist of factors set out in the Matrimonial Causes Act, which the judge must take into account when exercising their discretion in determining the financial claims. However, these are quite vague. By defining more clearly what is meant by the parties’ “contributions” or the threshold for “behaviour”, this would assist in narrowing arguments and would allow parties to focus their resources and efforts on resolving finances without the need for expensive litigation.”
Former leading judge of the financial remedy court, Mr Justice Mostyn, criticised the “appalling amount of costs” racked up in “middle money” cases. He stated that the present system “overlays simple rules with woolly discretion” which do not allow for transparency or consistency.
What Now?
The Law Commission has begun preliminary work and the project, and shall publish a scoping report by September 2024, which could provide the foundation for a full review by the Ministry of Justice.
The Ministry of Justice will consider the scoping report, and likely provide a consultation on proposed reforms, however this is unlikely to appear until at least 2025.
If you wish to obtain some advice on how the current law would apply to your case, please contact our Matrimonial Department by telephone on 01785 336617 or by email on [email protected].