‘The biggest change to divorce law for 40 years’

Divorcing couples and judges hearing their cases should be given a clearer idea of their financial aims in Court, according to the Law Commission.

The Law Commission’s recent proposals for reform are focused on providing clarity on how Courts decide to split assets, on the basis of needs. Naturally, clearer criteria would assist lawyers in predicting what a client could expect to receive, and would replace what is often regarded as a ‘judicial free for all’ with a more formulaic code, similar to that in place in Canada.

The general response from practitioners is largely positive in favour of the proposals. It has been stated by many practitioners that the present law, dependant largely on the discretion of the Judge, is uncertain and unspecified and can often result in inconsistencies and injustice.

Moves to reform the current legislation began following the Supreme Court’s ruling in Kernott v Jones last November that a man, who had left his partner 20 years previously, was not entitled to half the value of the house they had shared, after his former partner had paid the mortgage on her own for 13 years.

One particular area which the Commission is keen to address is the relatively grey area surrounding assets brought to a marriage; and assets inherited by one spouse during the course of the marriage. If introduced, the system would bear a greater resemblance to the current Scottish family law – where both wealth brought into the marriage and inherited assets have been protected for decades.

Indeed, a more formulaic approach may result in fewer cases reaching court, as a clear and established formula would encourage earlier settlement and focus each party’s minds on the final financial objective, rather than leaving lawyers and judges to decide. This may ultimately result in couples deciding to use relatively cheap online portals or mediators.

Nevertheless, each case is different and the concept of fairness means different things to different people. The present ‘discretionary’ system enables flexibility and can cater for just about any domestic scenario. Clearly the price for such a system is the uncertainty that comes with it, however there is no guarantee that a new formulaic approach would provide greater certainty or fairness.

Indeed, the discretion of the English Courts is an often praised tool and, while clarity and accessibility to the law are certainly ideas to be supported in principle, a ‘One Size Fits All’ approach may be no fairer than wide judicial discretion.

Too rigid an approach could arguably sacrifice the wide creativity and ‘balancing act’ approach which has enabled experienced Judges to create solutions that take account of a variety of factors such as bad behaviour, illness and other business assets etc.

The commission’s report, due next year, is expected to recommend further research before any changes are made to the existing Legislation.