Earlier this year, the Law Commission announced that they intend to conduct research into the options for reforming the current law surrounding financial remedies upon divorce and dissolution of a civil partnership. The Government have requested that the Law Commission conduct an in-depth analysis of whether the current legal framework is still working effectively and whether fair and consistent outcomes are still being delivered for divorcing couples.
The present law which determines financial remedy orders is now 50 years old as it was introduced within the Matrimonial Causes Act 1973. The Government have expressed concerns that the law may have become outdated and may no longer be applicable to the circumstances that are facing the financial remedy courts every day. They have expressed a direct intention to focus their resources on this area of family law as despite many years of campaigning for reform in other areas such as cohabitation law, the current Government have advised that there is still further work that will need to be carried out surrounding divorce and financial remedy law before they will be willing to turn their attention to other issues.
Heidi Kavanagh, Paralegal at Sinclair Law Solicitors said, “It is anticipated that the Law Commission’s report will identify whether any reforms are needed and if so, what these potential reforms may look like. During this project, the Law Commission will be considering the financial orders that are being made in other jurisdictions around the world and analysing whether these are more effective than the ones that are currently being made in England and Wales.”
The Government have asked the Law Commission to conduct an analysis on specific areas including:
- The discretionary powers that are given to Judges currently and whether there is a need for a clear set of principles set out in statute to allow for more certainty and consistency between parties.
- Whether wider powers should be given to the Court to allow them to make orders concerning children over the age of 18.
- How maintenance payments for ex-spouses/civil partners should work and potential maximum periods for spousal periodical payment orders.
- What level of consideration should the Court be giving to the behaviour of the parties when making financial orders?
- Are pensions currently overlooked when dividing the matrimonial assets and whether reform is needed on the types of orders available concerning pensions.
- The factors that the Judge must consider when deciding whether to make financial remedy orders.
It has also been published within the Law Commission’s terms of reference, that the review should take into account various policy aspirations for financial remedy law such as having regard to the vulnerable financial position that parties may find themselves in, minimising the risk of conflict between the parties and being straightforward and easy enough for parties to understand making it more of a possibility for them to agree a settlement themselves without the need for the Court’s involvement and the legal costs that are associated with this.
The Law Commission have confirmed that the preliminary work is already underway, and they are hopeful that the full scoping report will be made available in September 2024. It is expected that this report will provide a basis for a full review of the current financial remedies law building on the recommendations that had been made in their 2014 report, Matrimonial Property, Needs and Agreements.
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Article by Heidi Kavanagh, Paralegal, Sinclair Law Solicitors
