One of the biggest difficulties divorcing couples face is the uncertainty of outcome on their financial claims. The English courts retain a very wide discretion to redistribute assets and one of the few things that Family lawyers and judges can agree on, is that if a case goes to trial, no two judges are going to come to the same decision. The lack of certainty can hinder a settlement and is the thing that is most likely to hinder an early settlement.

There has been a clamour for a good few years to modernise the law so as to give divorcing spouses a great deal more certainty. Leading the way has been Baroness Deech in the House of Lords who has been progressing the Divorce (Financial Provision) Bill which is now reaching Committee stage in the House.

The Bill, in essence, wants to:

• Make pre- and post-nuptial contracts legally binding.
• Provide certainty of outcome on divorce so as to have an equal division of matrimonial property and exclude non-matrimonial property.
• Limit maintenance payments for a term of 5 years.

Pre- and post-nuptial contracts will be upheld in most situations under current law so long as certain criteria are met. The Bill wants to enshrine the criteria in the law to make contracts ‘watertight’.

While under the Bill the court will retain a certain amount of discretion to redistribute assets on divorce, e.g. if the needs of a child of the family under 21 need to be met, there could be unequal sharing of matrimonial property and one would expect that if the Bill is enacted that the principles would be adhered to in most cases.

The Bill and Financial Claims

The Bill would bring England far more into line with many European countries, including Scotland. It would have the significant advantage of providing certainty of outcome and would free up a lot more court time because the opportunities to deviate from the principles will be limited.

However, many Family lawyers oppose the Bill claiming that it would produce unfair outcomes in some cases and that judges need to retain wide discretion. Family lawyers can come up with examples where a stricter set of principles could give rise to potential injustice, but cases of significant injustice will be far fewer in number than the many cases where divorcing couples would have the benefit of knowing the outcome from the outset once they have made the decision to divorce.

It is very unlikely that the Bill will progress much further. It does not have the support of the Government and there isn’t Parliamentary time for legislative change. While the Bill has its flaws, it would be a step in the right direction because the current law is nearly 50 years old and is no longer fit for purpose in an over-burdened court system.