It’s been over a year since a monumental development in family law took effect. No-fault divorce was a huge step forward for those that had long campaigned for a less acrimonious way of divorcing than the previous ‘blame game’ had allowed. And it has paved the way for couples to move on from their relationship on better terms than might otherwise have been the case.
Attention has now turned to the way in which assets are divided on divorce. The legislation around this has been in place for half a century and some of the impetus for change has been its waning relevance to today’s society. Life in 2023 isn’t the same as it was in 1973; the family structure looks different, ‘traditional’ roles no longer exist in many relationships. And couples’ finances have become increasingly complex and often difficult to unravel.
The Law Commission has launched a review of whether the current law (The Matrimonial Causes Act 1973 for married couples, and its equivalent for civil partners – the Civil Partnership Act 2004) works effectively. In particular, the review will look at:
- Judges’ discretionary power to decide how financial assets should be divided, and whether there is a need for a clear set of principles to give more certainty to divorcing couples.
- Whether the courts should have wider powers 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 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.
Head of our family law team, Kate Rayner, says, “If you think about the developments that have happened in all aspects of life in the last 50 years, it’s no surprise that a law designed all those decades ago needs to be brought up to date. But I think the biggest challenge for lawyers and divorcing couples is in dealing with the uncertainty that has taken hold. The legislation sets out, in fairly broad terms, the factors a court should take into account when considering the division of assets. These include the parties’ income, financial needs, standard of living, and contributions to the family. But over the years the courts have applied their own interpretations. Different judges have taken different approaches. It’s meant that it can be extremely difficult to predict how a financial order in a particular case would look.”
And Kate is in a better position than many. As a specialist in financial cases, she has vast experience in the types of issues that arise when two people are trying to divide their marital assets. She’s often able to help them deal with this between themselves or through mediation, avoiding having to go to court at all. But, sometimes, only a judge can get a resolution.
“One of the problems with the uncertainty in the law is that there is always scope for one half of a couple to take themselves out of negotiation or mediation because they think they could get a better result in court,” Kate says. “Of course there are all sorts of costs to factor into that decision. But if we had a system that gave couples, lawyers and mediators a clearer indication of what a judge would order in a particular situation, it’s possible that a great deal more cases could be resolved between the parties and kept far away from the court.”
The Law Commission’s review is still in its early days, with a ‘scoping paper’ not expected to be published until September next year. However, for solicitors like Kate, the prospect of change is being greeted with great enthusiasm.
“We all want the very best for our clients, and for this to happen family lawyers need to be in the best possible position to advise them on the decisions that are so important for their future. There can never be complete certainty when it comes to judicial outcomes, and it is important that judges retain discretion. But I hope this review will be a thorough examination of the statutes and of the case law in the context of society today, and that it will bring about much-needed clarity.”