Marilyn Stowe Blog

Matrimonial property proposals could make settlements harder, say barristers

The Family Law Bar Association (FBLA) has criticised the Law Commission’s proposals for reform of laws defining matrimonial property in divorce, saying they could make settlements more difficult to achieve.

The association, which represents more than 2,500 family barristers, yesterday posted its response to the supplementary consultation paper published by the Commission in September.

The FBLA says:

“It would be a mistake, in our view, to conclude that the present system fails to promote settlement. On the contrary, our experience as advocates who deal with these cases on a daily basis is that the vast majority of financial remedies claims settle either without the need for litigation or as part of the highly successful FDR [Financial Dispute Resolution] process. One reason for this is the flexibility inherent in the judicial process.”

The document continues:

“Any proposal which reduces the current flexibility in favour of a prescribed or formulaic approach in relation to some elements of the award reduces the scope to reach agreements which meet the priorities of each of the parties. Under the present system there is scope for parties to arrive at a form of settlement that suits everyone in each case.”

Unfair outcomes are possible when cases do not fit into pre-defined formulae, the document stresses, saying the definition of matrimonial needs must be flexible:

“The concept of needs has to be elastic so as to include a low income family as well as those whose incomes are well above the national average. A higher income family may see pension provision, holidays, entertainment, school fees etc as an essential part of day to day expenditure. A lower income family may not. Housing needs may range from £50,000 to £5m depending on the wealth of the parties.”

Photo by John Halbrook  via Flickr under a Creative Commons licence