The Law Commission have published a scoping report, concluding that there is a need for reform of the current legal framework for financial remedy on divorce and dissolution.
Conclusions of the Commission
The paper identifies the current system for financial remedies, being the Matrimonial Causes Act 1973 and subsequent case law, as being problematic in several respects:
- The statute confers a wide discretion, with a checklist of factors but no express purpose or objective to be achieved in applying the factors in section 25 of the Matrimonial Causes Act;
- The majority of the case law relates to high-net worth cases, not reflecting the situation of most divorcing couples;
- The a lack of a clear objective codified in statute makes the law inaccessible to unrepresented parties;
- The combination of the wide discretion, and lack of clear objective codified in statute can make it very hard for couples to negotiate and agree remedies even with legal advice increasing the scope for disagreement, raising legal fees and meaning it is more likely that matters will be referred to court.
The report’s analysis of the current situation concludes that the current law does not “provide a cohesive framework in which parties to a divorce or dissolution can expect fair and sufficiently certain outcomes.”, and that it is for the Government to decide how to remedy this.
Proposals
Various models are proposed for reform, including:
- codification of the current case law;
- a “codification plus” model that codifies the current case law, and addresses additional areas that have not yet been settled;
- introducing a set of principles and objectives to underpin the court’s exercise of their discretion; or,
- creating a “default” regime, completely or substantially removing the court’s discretion so that the rules for division of assets on divorce are set.
The Law Commission also considered that it would be beneficial to have government consider legislation relating to pre-nuptial agreements, whether there should be a maximum term for spousal maintenance, and whether there should be wider powers for the court to make orders for the benefit of children over the age of 18.
In relation to conduct, i.e the law relating to the impact of a party’s behaviour on the financial remedy, the Commission stated that the law should be clarified to confirm what forms of behaviour should be considered relevant in financial remedy proceedings, the impact that conduct should have on any financial order, and the process that should be adopted in relation to conduct allegations.
Next steps
As this is a scoping report, which identifies the need for reform, rather than making substantive proposals for reform, it seems unlikely that there will be any significant change to the law as a result of this for several years. The next stage on these issues will be a response from the Government, with an interim response expected within 6 months, and a full response due within a year.

Article contributor, Olivia Hammond, Paralegal