The government will come under renewed pressure to reform the law governing finances on divorce after the Law Commission published a much-anticipated scoping paper on the subject today. Current legislation fails to provide a ‘cohesive framework’ for separating couples, and lacks certainty and accessibility to the extent it is potentially inconsistent with the rule of law, the paper confirms.
The commission was tasked by the previous administration with checking if the Matrimonial Causes Act 1973, which governs financial remedy orders, was working effectively, and delivering fair and consistent outcomes for separating couples.
In a 373-page report published today, the commission said it is not.
‘The [act] does not reflect the significant developments to financial remedies law arising out of judicial decisions. Combined with the wide-ranging discretion contained in the current law, this means that it is not possible for an individual going through divorce to understand, by reading the statute, how their case will be decided. The law lacks certainty, and accessibility to an extent that it could be argued to be inconsistent with the rule of law,’ the report says.
As the Gazette reported earlier this month, the commission has handed the government four potential models of reform: codification; codification-plus; guided discretion; and a default regime.
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Today’s report also explores other areas that require attention, such as nuptial agreements, spousal maintenance, conduct and pensions.
Professor Nick Hopkins, commissioner for property, family and trusts, said: ‘The end of a marriage or civil partnership is a stressful time for couples. It is important that when this happens, people should be able to understand what the law says about how their finances will be divided.
‘Our report concludes that the current legislation, which has not been updated for 50 years, does not provide couples with a cohesive framework for a fair or sufficiently certain outcome. We offer several models for reform for government to consider and are well placed to provide final recommendations for reform once government has decided which of these models to adopt.’
Family lawyers could be waiting until 2026 at the earliest for any reforms. The government must provide an interim response to the commission's report within six months and a full response within a year. Given the commission has only conducted ‘scoping’ work at this stage, more detailed work will need to be carried out on whatever the government decides, including a public consultation.
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