Law Commission publishes scoping report on financial remedies on divorce

Today the Law Commission has published a scoping report on the laws governing finances on divorce and the ending of a civil partnership. The Commission has concluded that the law needs to be reformed and presents Government with four models that reform could take. These range from codifying the current case law to introducing default rules to determine the division of assets. 

The laws which govern the use of financial remedy orders are now several decades old, dating back to the Matrimonial Causes Act 1973, and subsequently mirrored in the Civil Partnership Act 2004. 

The Law Commission finds that the law does not provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes. The law confers on the court a broad discretion. The resulting uncertainty operates to promote dispute rather than settlement. The four models the Law Commission presents to Government provide different approaches to the amount of discretion the court should have and how far the division of a couple’s assets could be based on clear rules.   

The scoping report also looks at whether there is a potential for reform in specific areas such as: 

• The introduction of binding nuptial agreements (“pre-nups”)
• What consideration courts should give to the serious misconduct of separating parties, including domestic abuse, when making financial remedy orders
• Whether there should be wider powers given to the courts to make orders for children aged eighteen and over
• Whether there should be a time limit on how long a person can be required to pay maintenance for an ex-spouse 
• Whether sufficient account is taken of pensions when dividing the divorcing parties’ assets.

Commissioner for Property, Family and Trusts, Professor Nick Hopkins said:  

“The end of a marriage or civil partnership is a stressful time for couples. It is important that when this happens, people should be able to understand what the law says about how their finances will be divided. Our report concludes that the current legislation, which has not been updated for 50 years, does not provide couples with a cohesive framework for a fair or sufficiently certain outcome. We offer several models for reform for Government to consider and are well placed to provide final recommendations for reform once Government has decided which of these models to adopt.” 

This report asks Government whether it agrees that the law needs to be reformed, and to choose the model for reform that should be adopted. 

The full report and a summary are now available.