Family lawyers have welcomed the Law Commission’s detailed work on the law governing finances on divorce but their initial observations suggest the road to reform could be long and complicated.
In a much-awaited scoping paper yesterday, the Law Commission said current legislation governing financial remedies lacks certainty and accessibility to the extent that the legislation is potentially inconsistent with the rule of law. It presented the government with four models of reform. The scoping paper also explored other areas requiring specific attention, such as nuptial agreements and pensions.
The government must issue an interim response to the commission’s report within six months and a full response within a year – so any reforms will not emerge until 2026 at the earliest.
While the commission’s report is an ‘important milestone’, Katherine Marshall, a family partner at Shakespeare Martineau, noted that actioned change is still some way down the track.
A complete overhaul is unnecessary, Marshall said: ‘The current system gives judges discretion when deciding how finances and assets are divided, unlike regimes in some other countries where the rules are far more rigid. Although this can be daunting for those unfamiliar with our legal system, it’s actually incredibly beneficial. Whilst changes are needed to promote certainty for divorcing couples, that should not be at the expense of losing the benefits of flexibility and fairness.’
Tony Roe, a family solicitor at Dexter Montague, said a ‘no-brainer’ for immediate reform would be to introduce qualifying nuptial agreements, ‘which is enforceable, providing certain conditions are met, without the need for the agreement to be scrutinised by the court in its discretionary jurisdiction’.
Will MacFarlane, family law partner at Kingsley Napley, noted that the commission recommended the government legislate to make nuptial agreements binding a decade ago.
‘In the face of complete inertia from the government, judges have done their best to fill the legislative vacuum by consistently upholding nuptial agreements if they have been entered into properly. As a profession, we would welcome the government finally getting on with this and legislating. This will bring clarity to couples wishing to avoid costly and contentious financial proceedings on divorce which can only be a good thing,’ MacFarlane added.
On time limits for bringing financial remedies claims, a topic arising in stakeholder discussions, Mishcon de Reya partner Claire Yorke said: ‘While this might be beneficial in terms of creating certainty and reducing claims being brought many years (sometimes decades) after a divorce, any limitation would need to be carefully considered in terms of how it might affect, for example, applicants who have been subject to domestic abuse and so have been reluctant to bring claims immediately on divorce.’
John Davies, partner at Farrer & Co, said the pressing issue for many couples is a lack of access to legal advice. ‘Unfortunately, none of the suggested ways forward does anything to remedy this. If anything, they cause more uncertainty – particularly the proposal to move towards a continental-style matrimonial property regime, which would have significant and widespread consequences, including in relation to inheritance law,’ Davies said.
