Essential fairness called for by FLBA in divorce settlement hearings

8th March 2015 by

 

In January 2013, the Family Bar Association (FLBA) published its response to the Law Commission’s consultation on matrimonial property, needs and agreements, which closed on 11 December 2012. In this article Healys family lawyers in Brighton look at the FLBA response.

A 2011 consultation had reviewed marital property settlements, widely known as pre-nups, and the 2012 consultation looked at two specific factors in family law regarding financial provision in divorce settlements and on relationship breakdown.

The consultees were asked their opinions on:

  • to what extent one spouse should be required to meet the other’s financial needs, and what exactly is meant by needs; and
  • what happens to property that one of the partners owned before the relationship or acquired during the course of it.

The FLBA stated that it understood the Law Commission’s reasoning behind the consultation to have been reached because:

  • Family law, in respect of spousal obligations, was “poorly defined, inconsistent and subject to variation both regionally” and between judges. Plus, the definition of “needs” had not been defined so as to effectively assess “likely quantum or duration of periodical payments”.
  • Objectives of financial provision claims were “impossible to discern” from the law as it stood.
  • The intention of family law, as it stood, was “inaccessible” to many and, sometimes, even to those who could afford expert family lawyers.
  • Without a specific definition of needs the wish for nuptial agreements to become binding in family law was unlikely to provide certainty for legal advisors or parties entering into such agreements.

Yet, the FLBA noted a number of positive aspects of the current family law system which allowed a discretionary element for judges:

  • Each financial claim decision was based on fact and provided for individual circumstances of the parties involved.
  • English and Welsh divorce settlements were generally seen as fair.
  • The system strived to eliminate discrimination – particularly in relation to husbands or wives, earners and homemakers
  • The system had proved to be flexible so that the changing face of society had been acknowledged and the interpretation of the Matrimonial Causes Act 1973, particularly S.25, had revealed the benefit of a legal system which allowed judges to interpret legislation on a case by case basis.

The FLBA’s conclusion to the consultation was that while some of its members supported an attempt to provide clarity on the issues of how non-matrimonial property could be defined, most did not wish to see a change in the system which, they felt, already included the exclusion of non-marital property in the divorce settlement calculation, unless it was expressly on the grounds of needs and to prevent hardship in individual claims.

The full response can be accessed from the FLBA’s website by clicking here.

To find out more about how you and your dependents may be affected by an impending divorce or relationship split, why not talk to one of friendly family lawyers in Brighton or London. To find out more about our services, please click here.