The Act which sets out the law as to how finances and property should be sorted out on divorce was passed back in 1973. Since then there have been some changes to the law, both by statute and through subsequent case law, but the basic rules remain essentially the same.
In recent years, however, there have been numerous calls for the law to be reformed, with many people believing that the rules are no longer appropriate in the twenty-first century.
In the light of these concerns the Government recently asked the Law Commission to review whether the current law is working effectively, and delivering fair and consistent outcomes for divorcing couples.
The Commission carried out a detailed analysis of the current laws, and published a ‘scoping report’, setting out possible models for reform of the law. The report did not make recommendations for reform of the law, but concluded that financial remedies law does require reform, finding that it does not “provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes”.
So what are the possible models for reform?
Four models for reform
The Commission proposed four possible models for reform. The models are in a spectrum relating to the amount of discretion that the court has when deciding financial remedy applications on divorce, ranging from preserving the court’s current discretion at one end of the spectrum to a model that provides very little judicial discretion, but greater certainty.
And the issue of certainty is at the heart of many of the calls for reform of the law. Under the present system the judge dealing with a case has a very wide discretion as to what possible orders they can make. This has the advantage that they can tailor their decision to the particular circumstances of the case.
On the other hand, it can mean that the outcome can be very difficult to predict, making it more difficult to advise people going through divorce, and less likely that they will settle the matter by agreement, rather than going to court.
The four models proposed by the Law Commission are as follows:
1. ‘Codification’. Under this model the court would retain a wide discretion, as at present. There would be minimal change to the existing law, but the case law that has amended the law over the last fifty years would be codified, to make things a little more certain.
2. ‘Codification-plus’. Similar to ‘Codification’, but with additional reform to deal with specific areas where the law is not yet settled, such as in relation to pre- or post-nuptial agreements, and the effect of a party’s conduct upon the settlement. The court would retain discretion under this model, but limitations on the discretion may be introduced in relation to areas of reform.
3. ‘Guided Discretion’. The next step on the spectrum towards certainty, introducing a set of underpinning principles and objectives, which would guide the exercise of the court’s discretion.
4. ‘Default Regime’. The final model, which would involve the creation of a ‘matrimonial property regime’ that would impose a set of rules governing how property is divided on divorce, thereby creating a high level of certainty, and leaving the court with very limited discretion.
Will the law be changed?
Clearly, these models, in particular those towards the ‘certainty end’ of the spectrum, would entail a substantial change to the current law, but whether or not there will be any change at all is not at all certain.
The Government is presently considering the Scoping Report. An interim response should be published shortly, with a full response by the end of the year.
Obviously, there is no guarantee that the Government will choose to go ahead with any of the four models for reform, or indeed any reform at all, but hopefully things will soon become clearer.
