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Law Commission wants more clarity over divorce settlements

The way a married couple’s assets are divided if they divorce could undergo major changes following a study being carried out by the Law Commission.

The Commission believes the law is currently unclear, which means couples are often uncertain about what kind of settlement they can expect.

Prof Elizabeth Cooke, who is leading a public consultation on the need for reform, wants to establish clearer guidelines on what a divorce settlement is designed to achieve.

Prof Cooke believes the current legislation is confusing because courts are unsure whether they are supposed to be compensating one spouse for the sacrifices they made during the marriage; or providing them with the necessary funds to start a new life independently.

She said: "It would be far clearer if the law was to state what is to be achieved."

The aim of the consultation is to seek views on two of the major issues in divorce proceedings.

  • To what extent should one partner have to meet the financial needs of the other, and what constitutes financial needs
  • What should happen to a property that one partner owned before the marriage or acquired during the marriage

In Canada, divorce settlements are worked out using a formula and the commission will consider whether a similar system would work in the UK.

In Scotland, there is a three-year limit on financial support from one spouse to the other following a divorce. However, the Commission has no plans to recommend that a similar system should be introduced in England and Wales.

Earlier this year the Commission carried out a public consultation on whether marital agreements, commonly known as pre-nups, should become legally binding.

It’s expected to produce a report next year, outlining its recommendations from the two consultations.

We shall keep clients informed of developments. Please contact us if you would like more information about the issues raised in this article or any aspect of family law.

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