Family lawyers brace for impact of MCA 1973 review

Debate surrounding proposed reforms to the Matrimonial Causes Act 1973 is beginning to ramp up as lawyers in London – often dubbed the “divorce capital of the world – ponder the potentially seismic impact of the Law Commission’s review.

The government commissioned a review of the 50-year-old legislation that governs how financial assets are divided in divorces in England and Wales. This review is likely to lead to potential changes in how courts handle divorce settlements.

The current law allows judges considerable discretion in making financial awards during divorce proceedings, especially concerning maintenance for the financially weaker spouse, often wives.

What’s more, campaigners are advocating for a “comprehensive overhaul of the law around financial assets in divorces”. They argue that the current system may not adequately reflect the changing roles of women in society. Baroness Deech a former chairwoman of the Bar Standards Boad, who has long pressed for reform, told The Times:

“The default position currently of judges is that a woman can’t be asked to go to work once she has been married — [having] given up work but is now divorcing.

While sometimes that is right, in many cases it is not. There will be an onslaught of protest from barristers and solicitors as there have been years of objections to reform.”

Baroness Deech and her fellow peer, Baroness Shackleton are working on a private member’s bill to put prenuptial agreements on a statutory footing. This move could attract more cases to English courts if prenuptial agreements gain legislative status.

Sir Nicholas Mostyn, a renowned judge in the family division of the High Court, has supported reform efforts by advocating for simpler calculations of matrimonial property division and reduced spousal maintenance awards. Mostyn highlighted concerns about excessive legal costs associated with divorce cases. He said:

“The singular feature that besmirches our system is the exorbitant amount of costs run up in resolving cases where the facts are simple and where there is no issue as to liability: where the only issue is how much.

There should only be an award of spousal maintenance to meet grave financial hardship.”

While there may be resistance from some practitioners, it is uncertain whether the Law Commission will recommend more rigid certainty in divorce settlements. There is also skepticism about an exodus of cases from English and Welsh courts even if reforms are recommended.

According to The Times, Suzanne Todd, a partner at Withers, said that if the Law Commission does recommend reform, an exodus of cases from the courts in England and Wales remained unlikely. She added:

“The reality is that most couples, even the most high net worth ones, don’t have an unfettered ability to shop around and decide which countries’ courts to use because they need to have a connection with the country in order to divorce there.

Even after Brexit, people have continued to live in or move to London for reasons such as business or the education of children. A change in approach to financial awards is not going to shift the dial on these magnetic factors”.

The Law Commission will present on the progress of their review at the Today’s Family Lawyer Private Law Update on 27th September 2023 in Manchester. Tickets are still available with the programme including the latest on financial remedies, parental alienation, mediation and “one lawyer, one couple” divorce proceedings.

For details of the full agenda, and to book your place, CLICK HERE.