Prolonged wait for reforms on financial provision divorce laws

The Government has recently revealed that Family Lawyers will unfortunately have to wait for up to another two years to see any reforms of the laws that govern financial settlements upon divorce.

Calls to reform these laws had recently been led by Baroness Deech, who reintroduced a contentious bill in the House of Lords in 2021 that sought to reform the way the Family Court should deal with financial settlements upon divorce.

Speaking recently, Justice Minister Lord Bellamy stated that the Government was in ‘close consultation with the Law Commission’, but when asked for timescales on these much-needed reforms, he would only say:

‘There is an initial phase of the kind I have just outlined, where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation.
That process will probably take at least two years.

‘The Matrimonial Causes Act 1973 is obviously now 50 years old and confers upon the Family Court and its judiciary a massive discretion to make appropriate orders to resolve financial matters upon parties going through divorce (or Civil Partnership dissolution). This flexibility is perhaps a good thing and was undoubtedly well-meaning but has now led to a situation where predicting the outcome of many cases is effectively impossible. When the judiciary have such a wide discretion to interpret the various factors specified in the legislation, it is inevitable that in contested cases, the ultimate outcome of a case hinges on the individual attitude of the judge exercising their discretion and in short, becomes something of a lottery.’

We spoke to Senior Associate Solicitor Stuart Barton about the matter at hand & the changes he’d like to see implemented –

‘The Matrimonial Causes Act 1973 is obviously now 50 years old and confers upon the Family Court and its judiciary a massive discretion to make appropriate orders to resolve financial matters upon parties going through divorce (or Civil Partnership dissolution). This flexibility is perhaps a good thing and was undoubtedly well-meaning but has now led to a situation where predicting the outcome of many cases is effectively impossible. When the judiciary have such a wide discretion to interpret the various factors specified in the legislation, it is inevitable that in contested cases, the ultimate outcome of a case hinges on the individual attitude of the judge exercising their discretion and in short, becomes something of a lottery.’

What changes would you expect to see?

1. Providing greater clarity upon what precise financial needs should be at the focus of the court’s discretion when it comes to resolving finances upon divorce.
2. Providing greater support and recognition for the ability of couples to enter into a pre-nuptial or post-nuptial agreement to expressly set out how they wish to divide their financial resources in the event of divorce.
3. Providing more specific guidance upon circumstances when a clean break may not be appropriate and if so, how long parties may expect ongoing financial support from their spouse to continue for.

What changes would you like to see?

1. Making a clear distinction between whether assets acquired or obtained by parties before their marriage or after their separation should or should not be considered ‘matrimonial property.’ At present, countless expensive arguments take place upon this issue in many cases because the position is arguable either way.
2. Setting a bench-mark of an equal division of assets between the parties where there are no children of the family to consider.
3. A uniform approach upon how the court should approach cases where pensions need dividing between the parties.

How these changes would benefit divorcing couples–

 Above all else, changes could and should lead to far greater certainty in terms of what the outcome of a case is likely to be. The need to spend vast and disproportionate sums arguing back and forth upon certain discrete points could be eradicated or at least significantly reduced.

Why speak to us now ?

Whilst the pace of legislative reform in this area is best likened to that of a snail, the campaign leading to the introduction of no-fault divorce shows that eventually, change can occur. Realistically, expecting any changes in the legislation within the next 5-6 years strikes me as unlikely. For now though, anybody who is either contemplating marriage or experiencing marital difficulties would be wise to seek advice upon their specific situation and what range of outcomes they may expect in the event of a divorce.