This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Who would be a Law Commissioner?
24 October 2014

Who would be a Law Commissioner?

In 2009 the Law Commission began a project to examine the status and enforceability of marital agreements.  In January 2011 it opened its consultation.  In September 2012 the Commission agreed with the Ministry of Justice to extend its project to also consider how, following divorce or civil partnership dissolution, "financial needs" should be assessed and what assets should be available for division

The Commission's final report was published on 27 February 2014.  The main recommendations for law reform were:

  1. To clarify the law relating to “financial needs” to ensure consistent application of the law by the courts.
  2. To consider whether non-statutory guidance could be drafted that would provide a range of financial outcomes, in figures, to enable separating couples to negotiate a reasonable outcome.
  3. To introduce legislation (in the form of a draft Bill attached to the report) to make “qualifying nuptial agreements” contractually enforceable on divorce or civil partnership dissolution which would enable couples to make binding arrangements for the financial consequences if their relationship broke down.

The Government has now responded to the Commission's report.  It has said that it considers that there is unlikely to be time for the Nuptial Agreements Bill to progress through Parliament before it is dissolved in March 2015 ahead of the next General Election.  The view of the Minister of State for Justice and Civil Liberties is that any decision regarding law reform should be taken by the next Government.

This all sounds discouragingly familiar.

In 2005 the then Government asked the Commission to review the law that applies to cohabitants when they separate. The Law Commission recommended in 2007 following an extensive consultation that reform was needed as the existing law was "uncertain and expensive to apply and, because it was not designed for cohabitants, often gives rise to results that are unjust".

Later that year the then Government responded to the Commission's report saying it would defer any decision on the issue until it had considered research findings on the application of the Family Law (Scotland) Act 2006, which had introduced financial rights for separated cohabitants north of the border.

In September 2011, kicking the issue of cohabitant's rights out of the long grass and into political oblivion, the then Parliamentary Under-Secretary of State for Justice told the House of Commons "the findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law".

The only proposed matrimonial finance reform left on the table is Baroness Deech's Bill.  That Bill, if implemented, would mean that after a long marriage a 60 year old wife with no earning potential could be cut off by her husband after three years leaving her reliant on the State.   There are so many other ways in which the Bill is grossly unfair that the prospects of it being seriously debated - let alone becoming law - are negligible.

It has been over 45 years since Parliament last debated our matrimonial finance laws.  Since then it has been left to the Judiciary to stretch the legislation to make it as fit as best it can for today's society.  If that's the way the policy makers wish to go, that’s fine, but perhaps they should then stop grumbling about uncertainty, delay and the costs involved in matrimonial finance litigation.  They should also stop pretending that mediation offers any sort of viable alternative to a wholly discretionary judicial determination of matrimonial litigation.  They should probably also stop asking the Law Commissioners to waste years investigating, at public expense, areas of the law they have appear to have absolutely no interest in reforming.

There is an alternative, though. They could, finally, grasp the nettle and have an honest responsible debate about how the law should regulate financial arrangements for separating families.