By Monidipa Fouzder >>

(4 December 2024)

The wait is nearly over for family lawyers waiting to see the outcome of Law Commission work to review the laws governing finances on divorce. However, they will have to wait a long time before they see any actual reforms – law commissioner Professor Nick Hopkins told a Westminster Legal Policy Forum conference yesterday that the commission’s forthcoming paper will not contain any recommendations for government.

The commission commenced work on financial remedies in April 2023 – a year after the previous government promised that a review would be coming ‘in a matter of weeks’. Hopkins told yesterday’s conference that the commission’s ‘scoping paper’ will be published on 18 December.

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However, the scoping paper will not contain recommendations for reform. Hopkins said it will be a ‘toolkit’ for the government on whether the law for financial remedies should be reformed and what shape any reform could take.

The scoping paper will focus on four potential models:

• Codifying existing caselaw, so the court retains wide discretion;
• Codifying existing caselaw but with further reform on specific areas where the law is not yet settled;
• Guided discretion, with underpinning principles and objectives guiding the court’s discretion;
• A matrimonial property regime, which would enable couples to know when marrying how property will be divided on divorce and give court very limited discretion.

Other issues expected to be addressed in the report include nuptial agreements, spousal maintenance, pensions and whether the court should have powers over children aged 18 or over.

Once the scoping paper has been published, Hopkins said the government could either decide not to reform the Matrimonial Causes Act 1973, take forward reform and do the work itself, or decide to take forward reform but ask the commission to conduct further work.

Neal Barcoe, deputy director of the family justice policy unit at the Ministry of Justice, later told the conference that the government will want to consider the findings of the commission’s work ‘and what that means going forward’.

(Courtesy: The Law Society Gazette)