The long-anticipated Law Commission’s scoping report on financial remedies on divorce and dissolution, published on December 18th, has sparked widespread discussion among family law professionals.
The report investigates the current legal framework, highlights its shortcomings, and explores potential models for reform. Industry experts have offered diverse perspectives on the challenges and opportunities presented by the report.
One of the central issues identified by the report is the extensive judicial discretion in financial remedies cases. Judit Kerese, Associate at Stowe Family Law, explained:
“The wide discretion the court has encourages subjectivity across judges and cases. Every case is treated uniquely, so people can be given different advice about outcome expectations. This uncertainty promotes dispute rather than settlement.”
Kerese welcomed the report’s exploration of potential new legal frameworks, which she believes would provide greater certainty and fairness. She added:
“Although no two cases are ever the same, the report’s recommendations for potential models of new legal frameworks would provide better expectation of a fair outcome and more certainty in what can be a tense and stressful time for individuals and families.”
Sarah Jane Boon, Partner at Charles Russell Speechlys, emphasised the need for clarity in the law. She said:
“The current law, as set out in the Matrimonial Causes Act 1973, does not reflect the subsequent developments that have arisen over the last 50 years through the decisions made, and reported, by Judges.
When this is combined with the wide-ranging discretion that Judges are able to apply when making decisions under the current law, it means that it is not possible for an individual going through a divorce to understand, by reading the statute, how their case is likely to be decided and what the financial outcome will be. Even with the benefit of specialist legal advice, an individual will likely be told there is a range of possible outcomes, leaving them unable to make definitive plans, and often unsure about whether they should agree a settlement or proceed to court.”
Boon advocated for a redrafted and amplified statute that aligns with the principles of the rule of law while providing greater certainty. Emma Collins, Partner at Weightmans, highlighted the four possible models for reform presented in the report:
“The paper sets out four possible models for reform. On one end, there’s codifying the current case law – keeping things largely as they are but making the law easier to access. On the other, there’s a default matrimonial property regime that offers certainty but takes away most judicial discretion. The other two model options, being ‘codification-plus’ and ‘guided discretion’, sit somewhere in the middle, blending clarity with some flexibility.
The extremes probably won’t work for most people. Codification alone doesn’t solve the deeper issues, and a rigid default regime could ignore the complexities of individual cases, particularly in situations where the needs and vulnerabilities of a family cannot be ignored. A more realistic approach might combine the best of both worlds – clearer rules where they’re needed with room for judges to make case-by-case decisions.”
The report’s discussion on pre- and post-nuptial agreements also drew attention. Currently, these agreements are not legally binding but can carry significant weight if properly prepared. Kerese and others noted the report’s revisitation of “Qualifying Nuptial Agreements,” which could make such agreements binding under specific criteria. 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.”
John Davies, Partner at Farrer & Co, raised concerns about the resource implications of reform:
“The fundamental issue with the family justice system is a lack of resources, which means that cases are taking far too long to conclude. There is ever-increasing pressure on the court system, pressure which would be further exacerbated by future reforms. It is hard to see how these changes could be implemented without significant extra resource for the justice system, particularly if judges are also expected to deal with future cases arising from the assisted dying bill and proposed reforms giving property rights to unmarried cohabitees, which are also said to be under consideration by the government.”
Katie Longmate, Partner at Russell-Cooke, highlighted the report’s relevance for vulnerable individuals, particularly survivors of domestic abuse. She called for reforms that protect these groups while ensuring a cohesive framework for all. She added:
“The Law Commission’s Scoping Report clearly articulates the urgent need for both procedural and substantive reform to the laws around financial remedies, though it deliberately stops short of making direct recommendations. It outlines a comprehensive list of possible reforms, which are yet to be adopted, but have the potential to usher in a new era for UK divorce law. What perhaps comes across most starkly in the report’s findings is just how much the current system’s flaws are worsening issues with access to justice.
The report makes it clear that the current statute is no longer fit for purpose in the modern era and often falls short of providing a cohesive framework where parties can expect a sufficiently clear and fair outcome. A better-defined statute would facilitate negotiations in the shadow of the law – through non court options – and assist couples in making their own arrangements.
The law lacks a stated purpose and whilst the underlying rationale is generally considered to be sound, greater clarity and awareness is needed. How to update the law against the social and economic background will be the challenge, and to protect the most vulnerable, particularly survivors of domestic abuse.”
Collins said that this scoping paper is “really just the start of the process”. She continued:
“The Government now has a chance to reshape the system into something fairer and more predictable. Let’s hope they choose a path that gives couples the guidance they need without oversimplifying such a complex area of law.
Finally, although we advocate the opportunity for reform of divorce financial settlements, it cannot be at the cost of cohabiting couples. We still lack any legal framework or codification for non-married couples. We hope that the Government will address both.”
