Do Financial Remedies on Divorce Need Reform? The Law Commission Says Yes

The government had asked the Law Commission to review whether the law, which dates back to the Matrimonial Causes Act 1973 and is mirrored for civil partners in the Civil Partnership Act 2004, is working effectively half a century on.

What the Law Commission found

According to the Law Commission, the 1973 Act does not reflect significant developments in financial remedies law made through judicial decisions. Combined with the wide discretion the statute gives judges, this means a person going through divorce cannot understand, by reading the legislation, how their case is likely to be decided. The Commission said the law lacks certainty and accessibility to an extent that could be argued to be inconsistent with the rule of law.

Four models for reform

• Codification: putting the existing law, including settled case law, on a statutory footing.
• Codification plus: codifying the law with statutory reform on discrete issues, such as pre-nuptial agreements.
• Guided discretion: a set of underpinning principles and objectives to guide the court's discretion.
• Matrimonial property regime: rules for dividing property on divorce, with the court's discretion strictly confined.

The models sit on a spectrum from discretion to certainty. The report also examines issue-specific reform, including spousal maintenance, orders for children over 18, the relevance of conduct and the treatment of pensions.

What happens next

The next step is for the government to decide whether it agrees that the law on financial remedies on divorce requires reform and, if so, which model to pursue. Under the Law Commission's protocol, the responsible minister must give an interim response within six months of publication and a full response within a year. For family practitioners, high net worth clients and those advising on pre-nuptial agreements and pensions, the choice of model will determine how much predictability any future regime offers.

Sources

• Law Commission: Financial remedies on divorce (project page)
• Law Commission: Financial remedies scoping report and summary