Cambridge Family Law Practice

Legislation governing property division on divorce is overdue for reform, the Law Commission recently declared.

In a ‘scoping’ report, the Commission insists that so-called ‘financial remedies’, as set out in the Matrimonial Causes Act 1973 (MCA):

“…lack… certainty and accessibility to an extent that could be argued is inconsistent with the [fair] rule of law.”

The legislation, is, the Commission continues:

“… now several decades old…[we find] that the law does not provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes.”

The uncertainty of the current legislation is down to the freedom held by individual judges to cater their rulings to the particular circumstances of each divorcing couple, a power known as ‘judicial discretion’. Although well-intentioned, this discretion promotes “dispute rather than settlement”, the Commission insists. Couples in dispute who are fortunate enough to have legal representation may be given conflicting expectations by their solicitors, while those with no lawyers may struggle to grasp how the law applies to their own situation.

The Commission has now called on the government to establish clear rules on the division of assets on divorce or the dissolution of civil partnerships, laying out four potential models for reform, which it refers to as:

1. Codification
2. Codification plus
3. Guided discretion
4. The ‘default regime’

As the name suggests, codification would simply mean that the precedents and case law which have developed around the existing legislation would be compiled and standardised. Meanwhile, codification plus would add the creation of new legislation where existing case law has left gaps, and would also introduce some limits on judicial discretion.

Guided discretion would involve the extension of the latter principle, involving a greater level of reform and establishing legal principles for family court judges to apply when ruling on the division of assets.

Finally, the Commission envisions a fully guided legal framework for matrimonial property division, significantly limiting judicial discretion and making it possible for divorcing couples and family lawyers to predict outcomes in court.

The Law Commission is an independent statutory body engaged in an ongoing review of legislation in England and Wales and making recommendations for reform.

Professor Nick Hopkins works at the Commission on property, family and trust legislation. He explained:

“The end of a marriage or civil partnership is a stressful time for couples. It is important that when this happens, people should be able to understand what the law says about how their finances will be divided. Our report concludes that the current legislation, which has not been updated for 50 years, does not provide couples with a cohesive framework for a fair or sufficiently certain outcome.”

Adam Moghadas, a partner here at Cambridge Family Law Practice, comments:

“The Matrimonial Causes Act 1973 (MCA) is central to our work as family lawyers. The later Civil Partnership Act 2004 was largely based on the MCA, with no significant changes. But society and social norms have changed enormously in the subsequent five decades and it really is time for meaningful reforms that reflect current norms and expectations.”

Read the Law Commission paper here. A summary is also available.