What the Law Commission didn’t say by John Bolch

JusticeAs I’m sure you will be aware, the Law Commission has today published its report upon matrimonial property, needs and agreements. Much has already been said and written about it, and no doubt much more will be said and written about it in the coming days. However, it only really scratches the surface of what needs to be done to reform family law.

The headline recommendation of the Law Commission was, of course, that “qualifying nuptial agreements” should be enforceable. However, Law Commissioner Professor Elizabeth Cooke herself said that such agreements “will not, and should not, be commonplace”. Their impact if passed into law therefore will be minimal, and they will be of no interest whatsoever to the vast majority of marrying couples.

As to the issue of the financial needs of the parties, the Law Commission did not recommend any change in the law, only that guidance be prepared to clarify what is meant by “financial needs”. I suppose that, if this recommendation is accepted, it will be a step in the right direction, albeit a rather small one.

And as for the issue of what does or doesn’t constitute ‘matrimonial property’ (and therefore fall into the ‘pot’ for division between the parties), the Law Commission has shied away from the problem and made no recommendations at all. We will therefore continue to be left with the uncertainty of relying upon case law on the subject.

In short, I don’t think we are going to be much further forward, even if the Law Commission’s recommendations are implemented in full.

So, what else needs to be done to improve our family justice laws? Well, there are many good ideas out there, but here are my top three.

Firstly, staying with the issue of sorting out finances on divorce or dissolution of civil partnerships, the Commission was, of course, only given a very limited brief. In fact, it seems odd to me that three aspects of the issue were looked at, rather than the complete issue being looked at as a whole.

We shouldn’t deal with this piecemeal. The whole area should be reconsidered and clarified. Perhaps even a formula or formulae could be introduced to sort out the entire settlement, subject to safeguards. Greater clarity would increase certainty and make it far easier for couples to sort out their financial arrangements by agreement.

Secondly, it really is time that we did away with fault-based divorce. At present you still have to blame the other party for the breakdown of your marriage, unless either you have seen separated for two years and the other party consents to the divorce, or you have been separated for five years. Such a system is completely out of place in 2014.

No fault divorce should return to the parliamentary agenda (and hopefully, this time they will not make a mess of it, as they did with the Family Law Act 1996). Having to blame the other party is not only outmoded, it completely unnecessarily increases the chances of antipathy between the parties, and reduces the chances of resolving other issues by agreement, including issues relating to children.

My final idea moves away from marriage, and is something I’m sure I’ve mentioned here before: property rights for cohabitees. I’m not saying that they should have the same rights as married couples, or that they should gain such rights as soon as they move in together. However, it is surely wrong that someone who has devoted much of their life to a relationship, perhaps looking after the home and bringing up children, should have to walk away from that relationship with nothing. The inability to make financial claims against former partners can lead to serious injustice and financial hardship.

This is, of course, another area upon which the Law Commission has previously made recommendations. In 2007 they recommended a scheme that would give certain cohabitees the right to make financial claims against their former partners. Unfortunately, the government has thus far chosen not to implement the recommendation.

So, the Commission’s report is a start, but much more remains to be done before we have family justice laws that are fit for the twenty-first century.

Photo by sparkle-motion via Flickr under a Creative Commons licence 

John Bolch

 

 

 

 

John Bolch is a family law blogger 

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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5 comments

Luke - February 27, 2014 at 6:59pm

“The headline recommendation of the Law Commission was, of course, that “qualifying nuptial agreements” should be enforceable. However, Law Commissioner Professor Elizabeth Cooke herself said that such agreements “will not, and should not, be commonplace”. Their impact if passed into law therefore will be minimal, and they will be of no interest whatsoever to the vast majority of marrying couples.”
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Well John, that may be your wishful thinking, but I hope people will take advantage of the opportunity of informed consent and make your supposition false.

Prenups have gained in popularity recently and if they are given some enforceability I think there is a chance that their uptake could increase exponentially.

Andrew - February 27, 2014 at 7:57pm

“The inability to make financial claims against former partners can lead to serious injustice and financial hardship.”

Other way round.

The liability to satisfy financial claims from somebody who never committed to you nor you to her/him would lead to serious injustice and financial hardship.”

JamesB - February 28, 2014 at 3:01pm

Einstein’s definition of insanity, trying the same thing over and over again, hoping the result will be different each time. Your proposals are out of the 70s and insane.

Mr Bolsh, I, and I expect most men would fight what you propose to the death. I am all for putting women on a pedestal, but having them wipe their feet on me while I do it, no thank you.

Marrying people against their will in the form of co habitation agreements also undermines marriage.

Fix the problem (with enforceable prenups all round or proper fault based divorce – I prefer the former) don’t just try and enforce it again, it doesn’t work.

I think we are the only country I know of that sits on the fence on this issue, for credibility the law has to go one way or the other.

JamesB - February 28, 2014 at 3:02pm

Mr Bolch, sorry, for mis-spelling, I was upset with what you were and are saying, like the other two posters.

JamesB - February 28, 2014 at 3:03pm

Luke and Andrew.

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