General March 24, 2023

Government to announce review of law on divorce finances

The law relating to divorce finances, i.e. how to sort out financial arrangements between divorcing couples, has been in essentially the same form for the last fifty years.

Time for reform

Many people feel that the time has come for the law to be reformed. This is both because of changes in the way society views divorce, and because of perceived problems with the current law.

For example, many no longer believe it appropriate that a spouse, normally the wife, should receive ‘maintenance for life’, save perhaps in exceptional circumstances.

And as to the current law, the most common criticism is that it is uncertain, being based upon the discretion of the judge, rather than upon strict rules, or even a formula. This uncertainty can make it very difficult to advise those going through a divorce, which in turn can make agreed settlement less likely.

There have also been complaints about regional variations in the way that the present law is applied, with courts in one part of the country making different decisions from courts in another part of the country. These complaints have, however, largely been address by the recent introduction of a nationwide (i.e. England and Wales) specialist Financial Remedies Court, which should make decisions more consistent.

The good news for the advocates of reform is that the government is to announce a review of the law.

The bad news is that it will take at least two years before any potential reforms become law.

Law Commission review

The law on divorce has, of course recently been reformed. A new system of no-fault divorce was introduced last April.

At that time the government indicated to the House of Lords that the government would look at the law governing financial provision ‘within a matter of weeks’.

But nothing more was heard on the subject.

Until now.

In a debate in the House of Lords on the 8th March Justice Minister Lord Bellamy pointed out that the Matrimonial Causes Act 1973, which sets out the present law, reaches its 50th anniversary this year, and said that a review of financial provision was “indeed opportune”.

He went on to say that the government is in close consultation with the Law Commission, which it considers the most appropriate body to carry out the review, and that he hopes to make a further announcement “very soon indeed”.

Pressed to be more specific, Lord Bellamy said he hoped to make a further announcement “immediately before or shortly after the Easter Recess” (the Easter recess begins on the 30th of March, and ends on the 17th April).

He did however warn that the process will not be quick, saying: “Typically, Law Commission work takes place in two phases. There is an initial phase … where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation. That process will probably take at least two years.”

And of course all of this assumes that the government at that time will accept the recommendations of the Law Commission.

And Lord Bellamy refused to be drawn upon what form any reform might take, for example similar to the model used by another country. He merely said that the Commission would “investigate all these matters, establish what the existing law and practice is and where the problems lie, and make comparative studies of various other jurisdictions, including Australia and elsewhere”.

He did, however, make clear that the review would not include any consideration of reform regarding the law on cohabitation – there have been many calls for the introduction of basic property rights for cohabitants on relationship breakdown.

In short, it seems that we are stuck with the present law for at least the next two years, and very possibly considerably longer than that.