The Law Commission has now launched a review of the Matrimonial Causes Act 1973. This is the piece of legislation that deals with finances upon divorce. The Law Commission intend to carry out a detailed analysis of the current laws, identify problems and suggest reforms.
A review of the law dealing with financial provision on divorce has been welcomed by many given that the existing laws have been in place for 50 years. It is important to make sure that the legislation is working effectively as society is now very different from that in 1973.
Whilst the law has its advantages, it has been criticised for its unpredictability due to the lack of guidance which can lead to lengthy litigation adding to the emotional and financial pressures.
When considering the family finances, the court has to take into account the factors contained within section 25 of the Act. Those factors have not changed but due to the wide discretion given to judges, the law has subsequently been developed through case law. Judges have tried to work within the framework of the legislation to adapt to societal changes but there have been difficulties.
Judges are afforded a large amount of discretion to assess each case on its facts and make different awards, which can lead to uncertainty. Unfortunately, sometimes we do have to give the difficult advice that some judges may agree with our client, and some may not. However, on the flip side, this discretion this allows judges to consider each case individually based on the parties’ circumstances without there being a prescriptive outcome which could be unfair.
Some of the uncertainty may be removed if parties enter into a pre-nuptial agreement, provided it is deemed as fair. Whilst more people are becoming aware of pre-nuptial agreements they are still not as common as you may think. In addition, pre-nuptial agreements are not yet deemed legally binding under the law of England and Wales. However, provided they are entered into properly and are fair, the court is likely to uphold them.
Baroness Deeach has been calling for reform and has said “there can be no doubt that the state of the current law is unacceptable,” suggesting the law was “lagging 50 years behind nearly every other country in the western world, including Australia”.
We will have to wait until September 2024 which is when the report is due to be released to see the Law Commission’s analysis, but it is important that this piece of legislation is looked at. Maybe a clear set of principles, enshrined in law, about division of the assets to give more certainty to divorcing couples could be a good thing? There would still need to be some discretion when dealing with unusual cases but in most “standard” cases surely it would be better to have some clarity about the way in which the law will be applied?
Here at bbl family law we have several financial remedy specialists who can assist you with resolving the family finances upon divorce. If you would like to speak to us about this, please do get in touch by calling 01603 050 or emailing info@bblfamilylaw.com.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.
