The Commission published a scoping report, Financial remedies on divorce and dissolution, last week, suggesting four possible models for reform. The Commissioners found the lack of cohesive legal framework and broad discretion of the courts in this area of law results in uncertainty which tends to feed dispute rather than settlement.
Law Commissioner, Professor Nick Hopkins said: ‘People should be able to understand what the law says about how their finances will be divided.’
Will MacFarlane, family law partner at Kingsley Napley, said: ‘The Law Commission recommended that the government should legislate to make nuptial agreements binding a decade ago and the government did nothing.
‘In the face of complete inertia from the government, judges have done their best to fill the legislative vacuum by consistently upholding nuptial agreements if they have been entered into properly. As a profession, we would welcome the government finally getting on with this and legislating.
‘This will bring clarity to couples wishing to avoid costly and contentious financial proceedings on divorce which can only be a good thing.’
The report suggests, first, codification to bring ‘settled case law principles on financial remedies into statutory form in the Matrimonial Causes Act 1973’. This would be the ‘simplest approach to reform’, the report states. Pre-nups would be upheld where fair but would not be binding.
Second, codification-plus would go further and include reform on pre-nups, spousal maintenance, treatment of pensions and other areas not yet settled by case law.
Third, a guided discretion model would set out purposes and principles of the law while retaining some judicial discretion, as followed in Scotland and New Zealand.
Fourth, a default regime imposes a set of rules from the date of the marriage along with the possibility for couples to agree binding nuptial agreements. This model, which is used in some European and Commonwealth jurisdictions, would ‘require wholesale reform of the law’.
