Background
A review of the basis for determining financial remedies upon divorce, or the ending of a civil partnership, is currently being undertaken by the Law Commission.
Some would say that it is has been a long time coming as the law for reaching such determinations, are held within the Matrimonial Causes Act 1973 (and were subsequently mirrored in the Civil Partnership Act 2004).
The Law Commission last looked at marital property agreements and other financial aspects of divorce in 2014 making recommendations at that time.
There is recognition however that primarily relying on legislation that is some 50 years old may no longer be fit for purpose, in a period where the nature of families, marriage and partnerships continues to evolve at pace.
In recognition the Review is likely to be completed by September 2024, with its findings published in November 2024. At the time of writing, a Labour government has now been elected. This is likely to impact on any fresh legislation introduced following the Review, as Emily Thornberry MP, the former Shadow Attorney General, announced that a Labour government intended to also reform the co-habitation laws in the UK (in recognition of the fastest growing family type, offering those couples outside of formal marriages or civil partnerships “proper” protections). Those views are likely to be echoed by the freshly appointed Attorney General Richard Hermer KC.
In essence it is proposed that women, would have increased rights to accessing financial support, following the breakdown of their relationship. Emily Thornberry asserted that changes were much needed in recognition that co-habiting women were being disproportionately let down by the justice system.
Additional legislation may so well be introduced, to address financial issues as they relate to co-habiting parties outside of marriage or a civil partnership.
Issues
The existing Law Commission will review whether these decades old laws are working effectively, ensuring that fair and consistent outcomes are delivered, both timeously and effectively. The Review will seek to investigate all aspects of Financial Remedy Orders, that are secured upon the parties divorcing. This encompasses the sale and transfer of property, the calculation of maintenance paid to spouses, civil partners (as well as any children) and the division of any pensions etc.
Reform
Once the review has published, the scope of likely reforms should become clearer.
This may include:
- Providing more certainty to divorcing couples by establishing clearer principles as to the division of financial assets, including the extent of associated judicial powers.
- Potentially increasing the scope of the courts to make orders relating to children over the age of eighteen.
- Re-evaluating orders relating to pensions and how they should be apportioned, upon divorce or dissolution.
- The extent to which the respective behaviour of the separating couple, should have on the making of Financial Remedy Orders.
- How maintenance payments for an ex-spouse or civil partner, should be implemented.
- The stance to be adopted, including enforceability, of any pre-nuptial agreements entered into prior to marriage.
- Providing a checklist of mandatory factors Judges must consider when deciding any Financial Remedy Orders to impose.
Conclusions
Within the lifetime of the new Parliament, it is likely that fresh legislation will enter the Statute Books, bringing greater certainty for separating parties. This certainty will hopefully, reduce the significant stress and upheaval that divorcing couples face within their personal, family and financial lives.
To discuss any of these issues please contact Shakeel Malik via szm@kingsfords.net or by telephone on 01233 665544.