The asset-splitting provisions within the Matrimonial Causes Act 1973 are set to be reviewed by the Law Commission having been described as “hopelessly out of date” by one peer and former family lawyer.
The timing of the review has also been described as “opportune” by justice minister Lord Bellamy with the Matrimonial Causes Act 1973 having been law for 50 years this year.
Criticism of the Act focuses on the unpredictable nature of the legislation through a lack of clear guidance. This, it’s said, lends itself to drawn-out litigation and thus impacts children negatively.
“[The Act relies] entirely on finance and the discretion of judges,” said peer and former divorce lawyer Baroness Shackleton of Belgravia, adding: “Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date.”
The criticism of the law does not go without retort: namely, that the legislation gives judges the ability to assess cases individually and allocate assets accordingly.
Despite this, Rachel Buckley, Joint Managing Director, The Family Law Company, said there are areas requiring greater clarity, including spousal maintenance – for example, whether it should be paid, how much should be paid, and for how long.
Calling for reform, Baroness Deech, said “there can be no doubt that the state of the current law is unacceptable,” suggesting the law was “lagging 50 years behind nearly every other country in the western world, including Australia”. The crossbench peer also pointed out that, with legal aid removed from most cases, many spouses on lower incomes are forced to represent themselves in court.
Lord Bellamy plans to ask the Law Commission to examine whether the legislation needs updating
“The Government is in close consultation with the Law Commission, which we consider the most appropriate body to carry out that review. These matters will be considered fully in a forthcoming review, hopefully by the Law Commission.
The Government thinks that the Law Commission is best placed to investigate all these matters, establish what the existing law and practice is and where the problems lie, and make comparative studies of various other jurisdictions, including Australia and elsewhere, as has already been mentioned.”
However, any change is likely to be two years away:
“Typically, Law Commission work takes place in two phases. There is an initial phase of the kind I have just outlined, where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation. That process will probably take at least two years.”
“The law as it stands related to financial remedy in divorce can be unpredictable, however it also brings flexibility,” said Alex Davies, Partner, Cripps, offering a balanced point of view:
“It’s important that any law which governs finances in a divorce can take into account individuals’ circumstances and doesn’t have prescriptive outcomes, which can lead to injustice.”
On the potential for reform, Davies continued:
“The Matrimonial Causes Act 1973 currently provides a framework of things the court should take into account when dividing assets and income on divorce. Judges interpret that to mean the starting point in most cases is a 50/50 split of wealth. Parliament could write that presumption into statute to give more clarity, although there is usually room for legal argument whatever the law states.”
On the potential for London’s title of the “capital of divorce” would be at risk if the discretion of the region’s judges was kerbed, Davies said:
“London is well-known as a global legal centre and a so-called ‘capital of divorce’ but I don’t see this as a negative. Businesses and individuals choose to litigate in London for a variety of reasons, not least our fair and impartial judicial system.”
Rachel Buckley was clearer in her view that the current law needs reform:
“The guidelines are 50 years out of date and have not adapted to the changes in society where women, generally, no longer stay at home and care for the home and the children. Women are more financially independent but that said one person does tend to step back and take on the needs of the family and as such shouldn’t be disadvantaged. Judges have made some good decisions in attempting to address 21st century life but any measures to provide certainty and consistency should be considered.”
Iwona Durlak, Senior Partner, at IMD Solicitors, commented:
“In cases where there are significant assets, equal division principle may seem unfair depending on the circumstances, but in cases where we look at the parties’ needs, where there is not enough in the matrimonial pot to provide for the family following breakdown of marriage, current legislation is helpful to ensure fairness.
Perhaps there should be a change to enforceability of prenuptial and postnuptial agreements to protect the family wealth and pre-marital assets. Having the experience of working with colleagues in other EU jurisdictions quite often there is a difference as to how assets that are not marital are treated in divorce cases in the UK. It seems to me that it is more difficult to protect pre-marital wealth in the UK.”