The Law Commission, the body which considers changes in the law, has announced a new consultation into the financial aspects arising when couples divorce or separate. In particular, they want to bring greater certainty to the financial orders which can be made. They will also consider how assets which are acquired by one party prior to a marriage or inherited by, or gifted to, one party during the marriage, are treated.
Why are changes being considered?
At present, the existing law gives the judge a wide discretion as to the financial orders which may be made. This will be with a view to achieving a fair outcome. In so doing, certain criteria must be considered, having particular regard to the welfare of any minor children. In the majority of cases, the judge has to do his or her best to assess the ’needs’ of the parties to the marriage and any children and see how these can best be met. There will not always be enough income and capital to meet those needs. It is recognised that different judges approach this exercise in a variety of ways so that there can be inconsistency in the orders which are made in similar cases.
The other aspect of the financial arrangements on divorce which has given rise to problems and disputes, is the treatment of assets owned by one party before the marriage or inherited by or gifted to one party during the marriage. Currently, these can be taken into account when financial orders are made if this is appropriate. In many cases, it may be difficult to disregard them. It will be interesting to see if any firm guidelines can be laid down to deal with this contentious area.
How may the law be changed?
The Law Commission has mentioned that it may look at the possibility of finding a formula for the division of capital and the assessment of maintenance in future divorce cases. In Canada, a formula has been devised but this does not apply in all cases.
Clear guidance on the question of assets acquired before the marriage or received by way of gift or inheritance during the marriage will be helpful. Many people think that it is only fair that such assets are kept by the person who was intended to benefit from them.
Will a formula be good?
If a formulaic approach is introduced, this will be helpful. It will save expensive litigation in some cases and assist couples who cannot afford legal representation to go to Court. It is hoped that a formula will save some of the acrimony which arguments about the finances can create at what is a very difficult time for the couple and any children involved.
When will there be changes?
We have to await the outcome of the consultation which will not be published until Autumn 2013. Only then will we know what is to be recommended and whether a formula may be considered. Any recommendations must then be debated by Parliament. It is unlikely that the law will be changed for at least another two or three years.
What happens if I am divorcing now or in the near future?
Your case will dealt with in accordance with the present law. Whilst this provides no clear answers as to what may happen in your case, it does provide some flexibility. If you want some advice about possible outcomes in your situation, our Family Law solicitors in Brighton can help you. Please contact us on 01273 604123.