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Time is ‘opportune’ for new review of divorce law

By Monidipa Fouzder >>

(20 March 2023)

Family lawyers will have to wait at least another two years to see any potential reforms of ‘out of date’ laws governing financial provision on divorce, the government has revealed.

One year after members of the House of Lords were told the government would look at the law governing financial provision ‘within a matter of weeks’ after no-fault divorce reforms came into force last April, they were told a review to be conducted by the Law Commission will be announced shortly.

Justice minister Lord Bellamy told peers during a Lords debate that a review was ‘opportune’ given the 50th anniversary of the Matrimonial Causes Act 1973.

Bellamy said the government was in close consultation with the Law Commission. Asked for timescales, Bellamy said he hopes to make an announcement on the review immediately before or shortly after the Easter recess.

‘Typically, Law Commission work takes place in two phases,’ he said. ‘There is an initial phase of the kind I have just outlined, where the problem is identified and comparative studies are made. That is typically followed by a consultation phase in which all stakeholders’ views are fully taken into account, which results in final recommendations and possibly draft legislation. That process will probably take at least two years.’

Calls to reform the law have been led in the House of Lords by Baroness Deech, who reintroduced a controversial bill in 2021 to reform the way the courts deal with financial settlements and by high-profile divorce lawyer Baroness Shackleton.

Shackleton said the law was ‘hopelessly out of date’ and relied entirely on finance and judges’ discretion. ‘The judges have a fiefdom now in that, since 3 October 2017, you cannot go to the Court of Appeal if leave is refused, so their discretion is absolute. It is normally commercial judges who change the law, and arbitrators, mediators and judges need guidance. There is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in conflict. Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date’.

Rachel Buckley, joint managing director of The Family Law Company, told the Gazette that judges have made good decisions in attempting to address 21st century life, but any measures to provide certainty and consistency should be considered.

‘There are regional variations as to how finances on divorce are resolved making the unpredictability around settlements and decisions more likely depending upon where you are in the country. Clear definitions on needs will reduce lawyers’ reliance on their personal experience and past decisions,’ she added.

(Courtesy: The Law Society Gazette)