Resolving the financial issues on divorce: can it ever be fair?

On 27 June 2014 the House of Lords debated the Divorce (Financial Provision) Bill, following which the Bill has now moved on to the next stage in the parliamentary process. The Minister of Justice said afterwards that peers had “sent a clear unanimous” message “that the time has come for Parliament to intervene”.

 In addition to the proposal that any pre or post nuptial agreements be taken into account when resolving financial matters on divorce, the Bill in its current form proposes that the existing legal framework be replaced. The current law was passed in 1973, when social values were different and over time it has been interpreted differently by the courts as values have changed. However, many people think that the statutory framework is out of date, unfair, and should be changed.

So, if the Bill becomes law, what will it mean for divorcing couples when discussing how to divide the assets, share pensions and decide what maintenance should be paid?

The key changes proposed are that there will be recognition of marital agreements; matrimonial property will be defined; the test will be fairness; and fairness will be assumed, when the property is shared equally.

The Law Commission is also due to present a draft bill to give effect to similar principles in August.

The timescale for such major changes is uncertain, but what is certain is that there will be lively parliamentary debate in the coming months which will attract media attention.

Whatever the final outcome, it seems likely that the current legal framework will disappear; and there will be a period of uncertainty as to how the new law will be settled and then applied and whether the intention – to achieve fairness – is actually achievable.

If you think this might affect you and you would like further information or assistance, contact the Family Team at Stokes Partners LLP on 01460 279279.

Written by Partner, Joanne Butler.