The Law Commission scoping report on financial remedy legislation

The current law relating to how finances are dealt with on divorce has recently been considered by the Law Commission. The scoping report published on 18 December 2024 determined that the current law does require reform as it “does not provide a cohesive framework by which parties can expect a fair and certain outcome”.

As part of the project, not only were lawyers’ and judges’ views sought, but so were members of the public’s, including groups such as those who support single parents, fathers, or victims of domestic abuse.

The Matrimonial Causes Act 1973 sets out areas that the court has to consider when making orders.  Whilst the interpretation of the law has changed over time, in that the current approach to implementation of the law has been interpreted over a number of key judicial decisions, the legislation has, in the main, remained unchanged since 1973.

The scoping report identified that the key criticism was of the wide discretion available to the court which meant that the law, as it stands, is difficult and uncertain for divorcing couples to understand. The report highlighted that in 2023 only around 40% of divorcing couples made applications to the court for their finances, and of those 71% were not contested. Whilst this is positive in the sense that the numbers seeking the court to make decisions for them are low (29%), the report sets out that the current law where there is such wide discretion means that it encourages dispute rather than agreement. Even when legally represented, different expectations can be given which can make it harder for couples to reach agreement. This uncertainty can be even worse where one or both have not taken legal advice.

Whilst it is positive that the court encourages couples to reach agreement by processes such as mediation or other forms of non-court dispute resolution, the current law does make it difficult for couples to negotiate when such a discretion exists. This causes uncertainty and confusion at what is a difficult and stressful time for couples.

Although the scoping report suggested four possible models on which any future reform could be based, it did not contain recommendations for reform of the law as it currently stands. It is thus “for the government to decide how this situation might be remedied, to promote increased certainty without losing the benefits of fairness and flexibility”.

For further information on this scoping report or to seek advice or mediation on your own circumstances, please contact Rebecca Eels, Stone King Partner, via RebeccaEels@stoneking.co.uk or 01225 324 470