The UK government have announced there will be an extensive review of the law that governs financial provision on divorce; the Matrimonial Causes Act 1973.
The basic law around the process of applying for a divorce was updated last year with the new “no fault divorce” coming into force in April 2022; a change that was welcomed by many family law practitioners and followed years of campaigning by Resolution (the family lawyers association). That change made it easier for parties to divorce quickly after separation without needing to cite unreasonable behaviour or adultery of the other person as the reason for the divorce – a point which historically unnecessarily increased acrimony between divorcing couples.
The UK government’s announcement that it is reviewing the law around financial provision on divorce will be welcomed by many given the existing laws have been in place for some 50 years without significant change. The societal changes in the UK since 1973 have been huge, with more women becoming financially independent and with two income households becoming the norm, rather than the exception. We also now have same-sex marriage since 2013 and the traditional nuclear family is far from the norm in the UK in 2023.
The law as created in 1973 sets out the factors that the Court takes into account in section 25 of the Act. Those factors have remained unchanged since, but the law has been subsequently developed by Judge-created case law. The development of the case law over a 50 year period has led to sweeping changes to how the Act is interpreted and in effect, the law itself has been changed significantly since inception by Judges and their interpretation.
One problem that arises from this, is that Judges therefore have wide discretion to assess each case and make different awards, which ultimately creates uncertainty. All too often we’re left advising clients that some Judges may agree with you, but some Judges may not. This can leave divorcing parties with so much uncertainty around the “right” and “fair” outcome that they’re unable to agree a financial settlement – which puts more cases in to the Court process.
One way to avoid this uncertainty being overwhelming is to get early legal advice from an experienced family law specialist. A matrimonial finance specialist will have seen enough divorce cases and heard enough Judges give indications and make decisions, to give clear advice about potential outcomes. We don’t have a predictable and certain system here in England – but with enough specialist knowledge and experience, our lawyers are in the best position to give our clients the best possible advice. And we pride ourselves on keeping as many cases out of Court as possible. Where cases do need to go to Court; our clients frequently achieve an outcome that is in line with the advice we have provided. We will only ever advise a client to take a financial claim through Court if it is clear that this is the only way for them to achieve a fair and reasonable outcome – and often that is in cases where sadly the opposing party is not in receipt of legal advice from a matrimonial finances specialist.
It is sincerely hoped by the Family Law Group that the review of the Matrimonial Causes Act 1973 will not only bring the law more up to date so it is more reflective of the society we live in today, but that it will also bring some clarity to the way in which the Courts will apply the law. More certainty for divorcing parties, and potentially a more formulaic approach, will hopefully reduce the amount of cases that end up in Court proceedings and help couples divorce amicably, quickly and cost-effectively. At Family Law Group we fully subscribe to this approach and continue to help our clients navigate through the current law which undoubtedly requires greater clarity. Most of our matrimonial financial specialists are accredited by either the Law Society as specialists in their field, or by Resolution (the family lawyers association) as financial remedy specialists.
For more advice, please contact your local Family Law Group and ask to book an appointment with one of our matrimonial finance specialists.