The Government has said that it intends to undertake an extensive review of the 50-year-old legislation that determines how assets are divided on divorce. It is, says Philip Rutter, long overdue with greater certainty in court decisions desperately needed.
Family law in England and Wales is shaped by the Matrimonial Causes Act 1973 and has long been criticised for being unpredictable and uncertain, encouraging divorcing couples to engage in costly litigation.
The legislation sets out a long list of what judges have to consider but with no real guidance in the statute. An extensive body of case law has developed over the years which has changed as judicial and societal attitudes change to the position today, where assets accumulated during marriage are more likely to be divided equally, and with significant uncertainty over maintenance awards. It has resulted in less well-off spouses in international families trying to get divorced in the London courts if they possibly can.
Whilst most divorce cases settle without having to turn to the courts, those that do can face significant costs. Baroness Shackleton told the House of Commons in March 2023 that the law was “hopelessly out of date” adding that divorce proceedings rely “entirely on finance and the discretion of judges”.
It is possible for judges to reach very different decisions from one another. Judges in London tend to be more generous to the less well-off spouse, often awarding higher maintenance awards over longer periods of time than those in other parts of the country.
Couples who cannot settle face the unpredictability and delay of going to trial along with high legal fees.
Law Commission consultation
The Justine Minister Lord Bellamy has said he will ask the Law Commission to investigate and report. It will, he said, look to comparisons in other parts of the world, including continental Europe where financial awards are less generous and often for a limited number of years.
Whilst we do not know what the Law Commission will consider in its consultation, any review that introduces a greater degree of certainty must be welcomed.
We would hope that it would also look closely at prenuptial agreements, which whilst recognised by the courts are not enshrined in law. Above all, it must look to introduce more certainty into divorce proceedings. Separating couples need to understand the outcomes they face so better-informed decisions can be made.
Family law does not, however, change quickly, and the recommendations of the Law Commission do not necessarily find their way onto the statute books.
The Law Commission is likely to take up to two years to review the 50-year-old legislation and make its recommendations before passing the ball into the Government’s court. And that is where such recommendations often rest. There are, sadly, few votes to be won in divorce reform.
If there is legislative change, there is also no small irony that the courts in England and Wales may end up adopting a more European approach to divorce at a time when the UK looks to further distance itself from our continental neighbours.
Contact our Family and Divorce Teams
The above is accurate as at 22 March 2023. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.