Law Commission to focus on the division of matrimonial property
The Law Commission has launched a consultation on the “incomplete and uninformative” law of financial provision on divorce.
Its paper, Matrimonial Property, Needs and Agreements, published this week, looks at the extent to which one spouse should be required to meet the other’s financial needs on divorce, and how couples should divide property owned by one of the partners before the relationship or acquired as a gift or inheritance during the relationship.
The paper highlights how family judges are given statutory guidance on what orders they can make, but not on what those orders should aim to achieve. Instead, it proposes that the courts be told what is to be achieved by provision for needs. This could be: to restore parties to the financial position they would have been in were it not for the relationship (and choices made on career and childcare); to give parties support to transition to independence; or to give support for a limited period of time to create incentives for independence. Alternatively, financial support could be calculated using a formula.
The Commission says it does not plan to follow the Scottish system of placing a three-year limit on financial support following divorce.
It claims there is “evidence of regional inconsistencies, with different outcomes favoured in different courts”.
Professor Elizabeth Cooke, the Law Commissioner leading the project, says: “The current law creates too much potential for uncertainty and inconsistency.
“We are seeking consultees’ views on a range of short- and long-term reforms, with the aim of bringing as much certainty as possible to this difficult area of law.”
Laura Brown, solicitor and collaborative family lawyer at Forsters LLP, comments: “It is a welcome step that the Law Commission is now considering the uncertainty surrounding financial settlements on divorce/dissolution...It is, however, essential that certainty and clarity do not come at the expense of the courts’ current ability to tailor-make financial settlements for families, thus avoiding hardship and protecting the interests of any children, as one size does not fit all.”
The consultation is supplementary to the Commission’s consultation in January 2011 on marital property agreements. The Commission will publish a report next year with recommendations drawn from both consultations.
