Law Commission confirms details of MCA Scoping report

The Law Commission have revealed details of their project to review the Marital Causes Act- including the impact of financial remedies on divorce.

Presenting at the recent Today’s Family Lawyer Private Law Update Spencer Clarke and Christine Gentry provided an overview of what, and critically what isn’t included in the review. The government has asked The Law Commission to consider whether reform of financial remedies law is needed. Their 2014 Matrimonial Property, Needs and Agreements Report considered limited, specific areas of law, recommending:

• Clarification of the meaning of “financial needs”, through the provision of guidance by the Family Justice Council.
• Investigation into whether a formula for calculating payments would be feasible, to aid negotiation.
• Introduction of binding “qualifying nuptial agreements”. Subject to procedural safeguards, these could not be used to avoid meeting the “financial needs” of either party or children

The fundamental questions for the financial remedies scoping project to consider was in The Law Commission’s Terms of Reference and stated:

“whether, in England and Wales, the current law relating to financial remedies on divorce and dissolution provides a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes.”

The Law Commission have said that a scoping report is a “standalone publication focused on exploring the issues involved in an area of law, to assess whether reform is needed, and the questions that any future project of reform will need to address”.  A scoping report does not involve full consultation, or result in recommendations for reform. Their financial remedies scoping report will identify:

• issues with the law and whether there is a case for reform;
• possible models upon which any future reform could be based, or draw inspiration from;
• the necessary parameters for further legal and policy work relating to financial remedies law;
• questions that should be considered during any future consultation phase; and
• policy choices that would need to be made by Government prior to devising a new scheme for financial relief.

The Scoping Report publication date will be September 2024. The Law Commission have said the project “will provide the basis for any future detailed financial remedies reform project and identify the key questions that any such project would address.”

The Commissioner leading the project, Professor Nick Hopkins said:

“The law on financial remedies is 50 years old this year; the Commission is excited to be involved in working out whether that law is fit for purpose or in need of reform, and what future possibilities for reform might look like.”

Their financial remedies project scoping exercise will also involve:

• detailed analysis of the current law (legislation and case law);
• comparative review of laws governing finances on divorce in other jurisdictions (eg Scotland, Australia, and civil law jurisdictions with choice of matrimonial property regimes).
• consideration of current legal and socioeconomic research on operation of the existing law, including the Nuffield Foundation’s Fair Shares Project (expected November 2023);
• engagement with stakeholders, including specialist lawyers and judges, academics, civil society and legal representative organisations.

No full public consultation at this stage – however we they do have plans for public engagement. As part of the financial remedies project, the Law Commission will also scope whether the issues covered in the Matrimonial Property, Needs and Agreements project need to be reviewed beyond our their 2014 recommendations.

For project updates please visit Financial remedies on divorce – Law Commission