The Matrimonial Causes Act 1973 has been in place in England and Wales for over 50 years and the decision to review it is not unexpected. But is the Law Commission right to focus on financial remedies, when other areas of divorce law more urgently require attention?
Setting out how a court would determine the division of assets when a marriage ends, the Matrimonial Causes Act has evolved considerably. As might be expected, significant case law has amassed and much of it is firmly embedded in the justice system and well known to family practitioners. For example, case law affecting how courts divide the assets of divorcing couples who have been in a short, or long marriage (which is generally assumed to be more than 10 years) is now firmly established; as is the law affecting those with pre- or post-nuptial agreements and their enforceability.
Another area of law that has evolved significantly surrounds child maintenance cases where the paying party is typically a high-earner – this explains why they are known as ‘top-up cases’. In these and other areas, case law continues to grow as society changes. Indeed, this is one of the benefits of the existing system.
Ever since the commission announced its intention to review financial remedies law, the legal profession has been divided on whether wholesale reform is needed. In particular, there is a lack of consensus about the extent to which existing discretion should be taken away from the courts and in which areas. Is there a need for wholesale change and total codification, a one-size-fits-all approach to financial remedy? Or would a more moderate approach and nuanced codification of some existing well-established principles into black letter law work better in practice?
For many legal professionals, the commission’s decision to focus on financial remedies law seems like a missed opportunity and out of step with the needs of modern society. While the Matrimonial Causes Act is more than 50 years old, it is effective legislation and has been bolstered by case law. It still provides clear guidance and principles for practitioners and clients alike. By contrast, specific law governing non-married couples is virtually non-existent; instead, it is piecemeal and in clear need of reform. Despite significant falls in the marriage rate, unmarried cohabiting couples still do not benefit from the same legal protections as married couples when they separate. Family justice group Resolution has long been calling for this to be rectified – most recently in its Manifesto for Family Law – but there is no sign of it happening. Why is this not being treated as a priority?
The commission’s approach seems to be borne out of the publicity surrounding a few high-profile cases But case law predominantly deals with ‘big money’ cases – those with significant and complicated assets – that not only require a court application but also a contested final hearing and maybe an appeal. While these cases tend to be reported, they are the exception rather than the rule. The cases that legal practitioners see daily tend to be far simpler, more straightforward matters, where all the available assets are required to meet the parties’ needs. Even if financial remedy legislation were to change, these cases would be largely unaffected.
The commission’s scoping report proposes four different potential models for financial remedies reform, each with a decreasing level of judicial discretion. The first is a codification of existing case law, leaving wide discretion for the courts. The second is codification, plus limited reforms where gaps in case law exist. The third and fourth models are more prescriptive still – the fourth proposing a new matrimonial property regime offering a high level of certainty but very limited discretion for the courts.
While a limited codification of existing case law into legislation could be considered a positive step, providing certainty for practitioners and clients alike, the wholesale erosion of judicial discretion would likely be a backward move. Removing court discretion would leave England and Wales with a one-size-fits-all approach to divorce settlements unable to deliver bespoke outcomes, which could have a detrimental effect on fairness. For example, it could undermine the court system’s ability to ensure that the needs of the parties and any children involved are met as best as they can be from the available resources.
As a practising divorce lawyer, I can appreciate that some changes might be welcomed and could even be beneficial in some areas, but there are some significant risks attached too, particularly if too much legal discretion is removed. Whatever changes are ultimately recommended, they must provide better outcomes for divorcing couples and not just a ‘dumbing down’ of the existing process.
The commission’s scoping report is just the start of a change process, and any concerns voiced now by the legal profession and others will undoubtedly be considered. We must hope that practical understanding and a clear sense of legal priorities prevail and guide what happens next.
The Law Commission published a scoping report on financial remedies on divorce on 18 December 2024.
Chris Lloyd-Smith is a family law partner at Anthony Collins, Birmingham. He is also a fully qualified arbitrator in matrimonial matters
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