The Law Commission has recently published a report in respect of how the Court should deal with the financial aspect of a marriage breakdown during divorce and civil partnerships, reforming divorce finances to bring them into the 21st century.
Conclusions of the report
The conclusion is that reforms are necessary. The current law is based largely on statute from 1973, and therefore, some say the current law is out of date.
The report is critical of the current system and the main significant area relates to uncertainty as to outcomes. This is primarily due to what is called “judicial discretion”. Litigation is also time-consuming, expensive and stressful.
The Law Commission is concerned with the inconsistency of outcomes, which relates back to each individual judge having broad discretion as to what they might view as a fair and reasonable settlement in each case. It is considered that this has diminished public confidence in the legal system.
Four methods of reform
The Law Commission is considering four different models.
The first model involves consolidating settled case law into actual statute. This would clearly create a very clear and accessible framework for individuals.
The second model called the “Codification Plus” model, is intended to deal with specific matters, such as clarifying the enforceability of nuptial agreements.
The third model is called “Guided Discretion”, and this introduces a statutory framework while retaining some flexibility. This Guided Discretion system draws inspiration from such places as Scotland and New Zealand. It attempts to combine clear principles and limited judicial discretion.
The fourth model is called the “Default Regime”. This would be the most significant reform. It completely replaces judicial discretion with pre-determined rules for dividing assets. The main benefit of this model is that it would mean that it would provide absolute certainty for individuals and the Court system would have minimal leeway, ensuring greater consistency in terms of outcomes, with the possible effect of reducing litigation overall.
Change is required, although some say that there must be room in any new model for each individual case to be considered on its own merits and that there must be a provision in any new system for the complexity of an individual case still being able to be considered properly.
At present, the Government is considering these proposals with many other bodies, such as legal experts and policymakers.
How can we help?
Louise Scott is a Senior Associate in our Family Law team, advising on divorce, dissolution of civil partnerships, finances and private children disputes.
If you would like to discuss your circumstances, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
For more information or advice, please call Louise or another member of our team in Derby, Leicester or Nottingham on 0800 024 1976 or contact us via our online form.
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