Financial remedies on divorce

Assessing the reform options for the laws governing finances on divorce and the ending of a civil partnership

The problem

Going through a divorce or ending a civil partnership is often a stressful and hugely consequential period for any couple – for both their personal and family lives, as well as their finances.

Every year, tens of thousands of couples begin proceedings for separation which result in the use of financial remedy orders – orders which determine how their finances are divided after they are no longer together. Financial remedy orders can include the sale and transfer of property, maintenance for spouses, civil partners and children, and the splitting of pensions.

However, 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.

Half a century after the passage of the 1973 Act, the Government has asked the Law Commission to review whether the current law is working effectively, and delivering fair and consistent outcomes for divorcing couples.

The project

In its review, the Law Commission will carry out a detailed analysis of the current laws on financial remedies, to determine whether there are problems with the current framework which require law reform, and what the options for reform might look like.

The project will consider the financial orders made by courts in England and Wales, as well as the law in other countries. It will conclude by publishing a scoping report in November 2024, which could provide the basis for a full review and future financial remedies reform.

As part of its analysis of existing law, the Law Commission will consider whether there is potential for reform in specific areas such as:

  • The discretionary powers given to judges over the division of financial assets, and whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples.
  • Whether there should be wider powers given to the courts to make orders for children over the age of eighteen.
  • How maintenance payments for an ex-spouse or civil partner should work.
  • What consideration the courts should give to the behaviour of separating parties when making financial remedy orders.
  • Orders relating to pensions and whether they are overlooked when dividing the divorcing parties’ assets.
  • The factors judges must consider when deciding which, if any, financial remedy orders to make.

 

Next steps

The Law Commission has started preliminary work on this project, with the aim of publishing a scoping paper in November 2024.

Terms of Reference 

Read the project’s Terms of Reference (ToR) here.

Background

In 2014, the Law Commission’s report, Matrimonial Property, Needs and Agreements, looked at marital property agreements and other specific aspects of the financial consequences of divorce and dissolution.

As part of the new review, the Law Commission will scope whether the issues covered in the Matrimonial Property, Needs and Agreements project need to be reviewed beyond its 2014 recommendations.

Contact

For general enquiries, you can contact the team at: financialremedies@lawcommission.gov.uk.

As explained above, our project will result in a scoping report, rather than making recommendations for reform of the law. We are therefore not conducting a full consultation, meaning we will not publish a consultation paper and invite consultees to give us their views. However, we are still interested in hearing about individuals’ experiences with the law. We are specifically interested in hearing about problems with the law, and suggestions for reform of the law that may address these problems.

If you have experience with dividing family finances after divorce, we would like to hear from you. Hearing from those who have personal experience with the law is very helpful for us as we analyse how the law works, and explore options for reform that could be considered in future. Before contacting us, please read our Terms of Reference for this project, which can be found on this webpage. Our Terms of Reference set out the areas of law and procedure that we will be analysing during this project, and those that are out of scope: we cannot, for example, look at financial provision that is made outside of the Matrimonial Causes Act 1973 (such as payments made under Schedule 1 of the Children Act 1989 or through the Child Maintenance Service). We are also not able to consider in this project the law dealing with cohabitants’ finances after separation.

Please note that as we are a public authority, we may be required to disclose information in line with the Freedom of Information Act 2000, should a request be made in line with the Act. More information about our organisational policy can be found here. The Act contains exceptions to the requirement to disclose information when a request is made under the Act. However, you should assume that information that you send us may be disclosed, and therefore avoid providing details which could identify you or another person. If we are required to disclose information that you send us, in response to a FOI request, we will redact that information to remove any identifying details.

We will store emails and any information sent to us in a redacted form, meaning that we will remove names and identifying data from your email. We are required to take this action in line with our data handling and redaction policies. More information on our data handling and redaction policies can be found here.

If you wish to contact us about your experience, please email us at: FinancialRemediesEngagement@lawcommission.gov.uk

Public Engagement

In addition to contacting us with your views about the current law, you are welcome to attend an evening online event we are organising on 18 March 2024. The event will consist of a short presentation by Professor Nick Hopkins, the Commissioner responsible for the financial remedies project, who will provide an introduction to the project and the major questions it seeks to explore. Other members of the Law Commission’s financial remedies team will then look at different aspects of the current law covered by the project’s Terms of Reference, and suggestions for reform. Following each part of the presentation, we will respond to questions and attendees will have the opportunity to express their opinions via an online poll.  We welcome questions being submitted to us in advance by email and will try to address the points raised during the event.

Event details can be found at this link.

Project details

Area of law

Property, family and trust law

Commissioner

Professor Nicholas Hopkins