The Law Commission has begun a consultation in relation to reforming divorce laws in England and Wales. The Commission, which recommends legal reforms in England and Wales, says the current lack of clarity can add to the misery of divorce and it wants the legislation to be revamped to define the objectives of divorce settlements.
The Commission is considering whether it should emulate Canada and introduce a formula to work out a fair outcome. In my view, this is likely to lead to a lot of hard cases, where the formula says one thing, but common sense says that the outcome is not fair. A one size all approach is not likely to work. There is already a formula for working out child support, and it is extremely controversial and often not very fair; for example, a non-resident parent (usually the father) gets a discount if the children spend more than 52 nights per annum with him despite the mother still having “fixed costs”, such a mortgage to pay, regardless of whether the kids are staying with Dad for the weekend. The non-resident parent also gets a discount if there are other children permanently living in his new home – even if he is not the father and his new partner is receiving child support from the other children’s father.
Resolving financial issues on divorce proceedings is, as my first boss once told me, more of an art than a science. Yes, that will inevitably lead to a variation of views about the likely outcome, but it is the only way that you can have a bespoke solution. Simply applying criteria to the circumstances will not produce the right result; you need a solicitor with years of experience who can assess the right solution that achieves fairness and meets the parties’ needs and most importantly, the needs of any children.
The Commission will also consider what is to happen to the non-matrimonial acquest; i.e. how should a court deal with assets that the parties owned before they begin to cohabit, or which were the result of a windfall during the marriage, such as inheritances. At the moment, the court considers these to be contribution by one party which it should take into account. The court may be prepared to ring fence them if there are enough matrimonial assets to meet the parties’ and the children’s needs.
There is a wealth of case law where the court have considered the issue of non-matrimonial assets; The difficulty is that all cases turn on their own facts and all cases have different facts. It is therefore very difficult to predict the likely outcome if you go to court in cases that involve non-matrimonial assets. This lack of clarity makes it difficult to reach an agreement without using the court.
The Commission has already conducted a consultation of the issue of pre-nuptial agreements, which are often used in cases where there are significant assets accrued before the marriage.
The vast majority of cases are already resolved by agreement without any need for court proceedings (apart from the paperwork involved in obtaining a divorce and financial consent order.) Anything that further reduces the number of cases that go through the court, with the consequential expense, stress and risk involved is a good things. The Commission’s work to bring greater clarity here is to be welcomed.