The Legislation Fee’s scoping paper on monetary treatments in divorce and civil partnership dissolution, printed on 18 December 2024, marks a major step in the direction of modernising the present authorized framework.
The prevailing legal guidelines, rooted within the Matrimonial Causes Act 1973 and mirrored within the Civil Partnership Act 2004, have lengthy been criticised for his or her discretionary nature, which regularly results in unpredictable outcomes. The statute, considerably unchanged for half a century, doesn’t expressly clarify what the final word goal is. Consequently, judges should depend on case legislation to fill within the gaps, regardless of most reported instances involving excessive internet price people; not the eventualities confronted by most divorcing {couples} in England.
Present state of play and fashions for reform
At the moment, courts goal for truthful outcomes by contemplating the ideas of wants, compensation, and sharing as developed by case legislation. Nevertheless, these rules are usually not outlined in laws and are subsequently open to interpretation by judges towards the details of particular person instances. This has led to inconsistent outcomes and a ‘postcode lottery’. This broad discretion fosters subjectivity amongst judges and instances and assorted authorized recommendation on anticipated outcomes. This unpredictability usually encourages disputes fairly than facilitating settlements, making the method costlier and inaccessible, particularly for individuals who can not afford authorized help.
The scoping paper units out 4 attainable fashions for reform on a sliding scale of discretion versus certainty:
1. Codification of the prevailing legislation and the rules of equity, wants, and compensation. This may contain minimal modifications to part 25 of the Matrimonial Causes Act 1973 and would retain the courtroom’s vast discretion. Continued inconsistent outcomes might subsequently be anticipated with this mannequin.
Instance: A choose would possibly nonetheless have the discretion to determine what constitutes ‘cheap wants’ for a partner, resulting in totally different outcomes in comparable instances.
2. Codification-plus. The present legislation is codified as above however introduces reforms to handle unsettled areas, such because the binding nature of nuptial agreements. The courtroom would retain a large discretion, however limitations upon it might be launched to supply extra certainty.
Instance: Nuptial agreements would grow to be binding, offering {couples} with extra certainty about their monetary preparations, whereas judges nonetheless have discretion in different areas.
3. Guided discretion. This may enshrine clear rules in legislation to information judicial discretion, with formulation as beginning factors for judges. This mannequin goals for extra constant outcomes whereas retaining some judicial flexibility.
Instance: Judges would possibly use a formulation to calculate spousal help however might alter the quantity based mostly on particular circumstances, such because the well being or incomes capability of a partner.
4. Default regime. This creates a ‘matrimonial property regime’ with guidelines for dividing property on divorce, limiting judicial discretion.
Instance: Property could be divided equally by default, however this could possibly be unfair in instances the place one partner has considerably larger wants or has contributed extra to the wedding.
What does this imply in observe?
At one finish, codifying present case legislation retains issues largely the identical however makes the legislation extra accessible. On the different finish, a default matrimonial property regime provides certainty however removes most judicial discretion.
The ‘codification-plus’ and ‘guided discretion’ fashions mix readability with flexibility, sitting someplace within the center. Extremes possible will not work for most individuals; codification alone would not deal with underlying points, and a inflexible default regime might overlook the complexities of particular person instances, particularly the place household wants and vulnerabilities are involved.
The report highlights how the present system’s flaws worsen entry to justice points. It reveals that the present statute is outdated and fails to supply a transparent framework. A greater-defined statute would facilitate negotiations exterior of courtroom and assist {couples} make their very own preparations. The present laws lacks a acknowledged goal, and whereas its underlying rationale is sound, larger readability and consciousness is required. Updating the legislation towards the social and financial background shall be difficult, particularly when striving to guard probably the most susceptible, like survivors of home abuse.
While the report highlights the pressing want for procedural and substantive reform, it stops wanting direct suggestions. The accountable authorities minister has a 12 months from publication to supply a full response after which it’s anticipated that the Legislation Fee will put together an extra, extra detailed report. A sensible consequence would possibly strike a stability—offering clearer guidelines whereas nonetheless permitting judges to make case-by-case choices. No two instances are the identical, so it’s important that judges can use their discretion to make sure outcomes are usually not so binary that they fail to attain a good consequence.
The highway forward…
Finally, it’s for the federal government to determine the best way to treatment these points, selling certainty with out dropping equity and adaptability. Even when there may be an urge for food for reform, modifications are prone to be gradual. Implementing a few of these fashions would require very vital change to the authorized framework. It’s troublesome to see how these could possibly be applied with out vital additional useful resource for the household justice system, significantly if judges are additionally anticipated to take care of proposed reforms in respect of single cohabitees and the assisted dying invoice. A mix of codification of the prevailing legislation and guided discretion is prone to be the very best resolution, at the very least for now.
Victoria Batstone is senior affiliate at Stevens & Bolton LLP
