Family law reform: divorce and matrimonial planning for litigants in person
Prenups should be binding and individuals unable to a ord lawyers should have access to ready-to-use financial reckoners, says the Law Commission. Jean-Yves Gilg reports
New guidance should be drawn up to give couples a clearer idea of how their needs would be assessed on divorce, the Law Commission has recommended in wide-ranging proposals that would also see pre-nuptial agreements become binding in English law.
The commission’s report, ‘Matrimonial property, needs and agreements’, falls short of recommending a full-scale recast of English matrimonial law but outlines a structure for gradual reform to cope with the growing number of self-represented litigants.
In a key recommendation, the report says the meaning of ‘financial needs’ should be clarified in Family Justice Council guidance to ensure that the term is “applied consistently by the courts, reinforcing judicial best practice”.
“It will also give people without legal representation access to a clear statement of their responsibilities and the objective of eventual independence that a financial settlement should strive to achieve,” the report says.
This would be accompanied by the possible introduction of formulas allowing couples to calculate their financial liability, as is the case in Canada, subject to further research as to whether this would be workable.
WORKABLE FORMULA
“Formulae, if developed, would take the form of non-statutory guidance and would give a range of outcomes within which the separating couple might negotiate,” the report recommends.
“Regional variations between courts have created a bit of a postcode lottery,” said Irwin Mitchell partner Alison Hawes. “The increase in litigants in person means a predictable formula will bring certainty and make the judges’ job easier.”
“The recommendations for greater guidance on how financial needs will be assessed can only assist in making the family justice system more accessible to the average man on the street,” said Stewart Law associate Adrian Clossick.
The formula-based approach also had support from academics who responded to the commission’s consultation and members of the public.
“Certainty of outcome on divorce is extremely important,” said an anonymous consultee. “We have ‘palm tree justice’ right now. I would favour a publicly available table of % financial settlement results on a divorce with maximum and minimum % in different situations.”
But Clossick has concerns that a formula-based approach, combined with the withdrawal of legal aid, the proposed substantial increase in court fees and the continued focus on compulsory mediation, “will lead many family lawyers to see this as a tentative step towards the government’s long-term goal of taking divorce out of the existing court system.”
Largely predicted to form the core of the proposal, prenups would only be binding if they met certain conditions and only after both partners’ financial needs, and any financial responsibilities towards the children, have been met.
“We believe that married couples and civil partners
should have the power to
decide their own financial arrangements, but should not
be able to contract out of their responsibilities for each other’s needs, or for their children,”
said Professor Elizabeth
Cooke, the commissioner heading the project.
QUALIFYING PRENUPS
At present, the courts will enforce prenups in most circumstances where they are satisfied that the parties have entered into them willingly
and after receiving
independent legal advice, but there is no guarantee that they will be upheld.
“Pre- and post-nuptial agreements are becoming more commonplace but the courts will not always follow them and lawyers are therefore not able to give clear advice about their effect,” Professor Cooke said.
“Qualifying nuptial agreements would give couples autonomy and control and make the financial outcome of separation more predictable,” she added. “We have built in safeguards to endure that they cannot be used to impose hardship on either party, nor escape responsibility for children or to burden the state.”
Prenups would be binding if there has been no undue influence, the parties have received independent legal advice, have been signed at
least 28 days before the wedding, and that there has been full disclosure.
A draft bill attached to the recommendations would make the required amendments primarily to the Matrimonial Causes Act 1973 and Civil Partnership Act 2004. This, however, will depend not just on parliamentary timetable but also on the government’s willingness to take the proposals forward.
“We may now, at last, be on the threshold of welcome change,” said Jane Keir, senior partner at Kingsley Napley. “We urge Parliament not to miss this opportunity to allow couples greater certainty and pre-agreed financial control should their relationship disintegrate.”
Adrian Crossick too agreed that “giving nuptial agreements contractual weight will, quite rightly, be seen as game
changer. But for the vast
majority of people, additional practical guidance about how their financial needs will be met on divorce will be more relevant as it will provide greater certainty as to the likely outcome in their divorce.” SJ
| VERBATIM 'GUIDANCE FOR LAWYERS AND COUPLES' |
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1.21 As to future development, we have recommended that work be done with a view to going beyond words and providing figures for the guidance of lawyers and of couples. Some jurisdictions – notably Canada – have introduced calculations that generate guidelines, which can be used as an indication of a range within which a court order might fall. Such calculations need not generate a single answer to the question “how much do I have to pay?”: they might generate a range, indicating a maximum and minimum level of support within which parties can negotiate, knowing at least that they are “on the right lines”.
1.22 For individuals without access to legal advice who need to know whether, for example, one should be supporting the other for five years or ten years, or whether the proceeds of sale of their house should be split 50/50 or 40/60, guidance in the form of figures as well as words could be invaluable. A formula would have to take into account, among other factors, the age of the parties and the length of their relationship, the age of their children and the length of time for which the joint responsibilities of the relationship (in particular the care of the children) were going to continue and to impact on the ability of either or both parties to support themselves. These are all factors that a judge will take into account in making orders at present, and are all factors incorporated into the calculations that have been developed in some jurisdictions.
1.23 Our objective is to leave the framework of the law as it is but to accept that, increasingly, people will have to make use of it without lawyers. Guidance will help. Calculations, giving an indication of a range within which a couple might negotiate, will also assist. It is very easy to dismiss such a development on the basis that no formula can capture individual circumstances, and we agree that that is true. But there is no suggestion that the law should become purely formulaic or that financial arrangements between adults can be captured solely by a formula in the way that child support is calculated under the current law. Nor is there any suggestion that orders to meet financial needs should be determined administratively by a non-judicial agency.
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