Financial remedies law is ‘not sufficiently certain’
On the 50th anniversary of the Matrimonial Causes Act 1973 (“MCA 1973”), the government asked the Law Commission to review whether the current law is working effectively and delivering fair and consistent outcomes for divorcing couples. The Law Commission scoping report was published on 18 December 2024.
The Law Commission carried out a detailed analysis of the current laws on financial remedies and they concluded that, in their view, the current law does not ‘provide a cohesive framework in which parties to a divorce can expect fair and sufficiently certain outcomes’.
They noted that the MCA 1973 no longer contains a statutory objective (as the previous objective was set out in sections of the Act which have been repealed), although it is implicit that the court should achieve a ‘fair outcome’. The Law Commission has said that the government may wish to consider whether other principles should be ‘specifically articulated as underpinning any reformed law’ and what weight should be attached to those principles.
They also identified four possible models for reform:-
(1) Codification;
(2) “Codification-plus”;
(3) Guided discretion; and
(4) Default regime.
As they explain, “these models represent a spectrum of reform”, ranging from codification at one end of the spectrum (which would make little substantive change to the law and therefore would not bring about certainty of outcomes), to imposition of a default regime at the other end of the spectrum. A default regime would provide more certainty but that would go hand in hand with less discretion for judges.
They have posed two questions for the Government to consider:
(a) Does the Government agree that the law governing financial remedies on divorce requires reform, and
(b) If so, upon which of the four models should a reform be based.
It will be interesting to see what the Government now does, and it is understood that under the applicable Protocol between the Government and the Law Commission any interim response will come from the relevant minister within six months (June 2025) and a full response within a year (December 2025).