This is usually one of the first questions I’m asked when I see a new client for the first time. They’re often worried about money and property and how they will be able to provide for themselves and their family or, from the opposite point of view, what their former partner might be able to claim from them.
It might be all about to change…
The current Law is based on a number of discretionary principles that have been in force since the early 1970’s and, as I’ve commented in other blogs, society has changed a great deal since then. The Courts have over the last 50 years interpreted these laws and have provided guidance for lawyers and others working in the family justice system. This helps lawyers advise clients and to enable to reach agreements or to understand what to expect if agreement can’t be reached and Judges have to make decisions for them.
The overriding principles considered in most cases are to ensure the needs of the family, particularly any dependent children, are met and how family resources and obligations should be shared. There is usually a tension between the two and although the decisions and guidance of the higher Courts are helpful, as they are based on discretionary principles, there is never a “right answer” but instead a range of possibilities, some which are more likely than others. Have a look at our family finance pages for more information.
This flexibility can be a good thing, as no two families are the same. However, it can be frustrating and slow to resolve. Some people have been asking that the Law is made clearer and more certain, to provide speedier and less expensive solutions.
The change may come as a result of a review of the Law because of this. The Law Commission is looking at four options to provide clarity and bring the Law up to date.
1. Codification of the existing law and the principles of fairness, needs, and compensation. This would involve minimal changes to the current Law and would retain the court’s wide discretion. As you might realise, because changes would be minimal, the effect of them is also likely to be minimal.
2. Codification-plus. The current law is codified as above but with reform to address grey areas, such as the binding nature of pre-nuptial agreements. The court would retain a wide discretion, but with limitations as to how that could be used to provide more certainty.
3. Guided discretion. This would enshrine clear principles in law to guide judicial discretion, with prescribed methods as starting points for judges. This aims for more consistent outcomes whilst keeping some judicial flexibility.
4. Default regime. This creates a ‘matrimonial property regime’ with fixed methods for dividing property on divorce, limiting judicial discretion. This could be unfair in cases where one spouse has significantly greater needs or has contributed more to the marriage.
How soon might things change?
Whilst the report highlights the urgent need for reform, the Government has a year to provide a full response after which it is expected that the Law Commission will prepare a further, more detailed report. Ultimately, it is for the Government to decide how to improve outcomes, still promoting certainty without losing fairness and flexibility. Changes are likely to be gradual as some of these models would require very significant change to the legal framework and the resources to ensure that they worked. Any changes, therefore, are likely to be many years away.
Next Steps...
If you would like advice on separation, divorce or financial settlements, please contact the Family Law team on freephone 0800 011 6666 or via email at legal@timms-law.com.
