Commissioned by the Ministry of Justice (MoJ), the new law reform project will consider the use of financial remedy orders: orders for financial provision between couples at the end of their marriage or civil partnership.
A key part of proceedings for divorce and the ending of civil partnerships, financial remedy orders are governed by the Matrimonial Causes Act 1973, and mirrored in the Civil Partnership Act 2004.
Affecting tens of thousands of couples every year, such orders can include the sale and transfer of property, maintenance for spouses, civil partners and children, and the splitting of pensions.
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.
In its review, the 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 Law Commission’s work 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 September 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 structure of the system for making regular financial payments from one person to another after divorce.
- The factors judges must consider when deciding which, if any, financial remedy orders to make.
Professor Nicholas Hopkins, Law Commissioner for Property, Family and Trust Law, said:
“The laws governing financial provision on divorce or the ending of a civil partnership should be as fair and simple as possible, minimising the risk of conflict, uncertainty or financial strain.
“Fifty years since the current law was put in place, it’s essential that we look at whether it is working effectively for all parties. This is a hugely important area, affecting separating couples and their children at an incredibly stressful time of their lives. It is essential that any reform in this area is very carefully considered.
“I am therefore pleased that the Law Commission will be undertaking this review, to consider how any reform of this significant area of law could be shaped.”
Justice Minster Lord Bellamy said:
“The breakdown of a marriage can be an incredibly difficult time but it is in everyone’s interests to remove acrimony from the process wherever possible. This review will address whether our laws are still working in the fairest way to support separating couples and avoid unnecessary conflict when it comes to dividing their finances.
“This important step builds on our landmark no-fault divorce reforms which ended the blame game, helping protect families and children from the stress of separation.”
The Law Commission has started preliminary work on this project, with the aim of publishing a scoping paper in September 2024.