APOCALYPSE? NO: DIVORCE, SETTLEMENT AND REFORM 

Published on 29 March, 2023 | Emma Whitehead

It is possible to say without exaggeration or irony that change has been one of the most constant elements of family life in England and Wales over the course of the last half-century.

Back in 1973, a major piece of divorce law reform – the Matrimonial Causes Act – came into force.

Between then and 2019, there was a 45 per cent reduction in the number of couples marrying each year (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2019).

As the number of weddings waned, the number of individuals choosing to live together without marrying has increased dramatically.

Figures released by the Office for National Statistics (ONS) only last month, showed that just under a quarter of the adult population who took part in the 2021 census were cohabitees compared to one-fifth in the previous such survey 10 years before (https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/homeinternetandsocialmediausage/articles/livingarrangementsofpeopleinenglandandwales/census2021).

Until fairly recently, it seemed that the legal system had been outstripped by the pace of change in Britain’s households.

That was the case, at least, before the Divorce, Dissolution and Separation Act 2020 took effect in April last year (https://www.legislation.gov.uk/ukdsi/2022/9780348230949).

Widely considered the most important update of family law in 50 years, it meant that separating spouses no longer had to blame each other for the breakdown of their marriages if they wished to avoid a drawn-out divorce process.

Hailed by lawyers and politicians alike as a major advance, it was still only regarded as one essential part of an overall solution to the kind of tensions which arise when marriages collapse.

As my colleague Claire Reid pointed out at the time, allegations of misconduct could – and often did – create friction but most of the disputes on divorce related to how couples divided their joint marital assets (https://hallbrown.co.uk/no-fault-divorce-historic-but-only-a-halfway-mark/).

Now, Government has given notice that it is moving to address that very point.

In the House of Lords earlier this month, Lord Bellamy – a Parliamentary Under-Secretary of State at the Ministry of Justice – disclosed that there were plans to ask the Law Commission to conduct a review of the rules on what The Times described as “asset-splitting” (https://www.thetimes.co.uk/article/81807458-c699-11ed-84e7-e2697ffed9a9?shareToken=98777709c3c38b94665898943853caae).

He was pressed on its importance by Baroness Deech, who remarked that the current law was so “antagonistic and unreformed” – and even thought to be “apocalyptic” by some members of the judiciary – that it risks undermining whatever benefits might accrue from the advent of ‘no-fault’ divorce.

As to why there had been no changes to the relevant law so far, Lord Bellamy pointed out that “we have had our hands somewhat full in recent times” (https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm).

In addition to last year’s ‘no-fault’ divorce development, last month saw the introduction of a law raising the minimum age for marriage to 18 as part of efforts to combat forced marriages (https://www.bbc.co.uk/news/uk-politics-64748930).

Nevertheless, critics within and without parliament insist that change is long overdue to reflect – among other things – the greater financial independence of women today compared to their counterparts of the early 1970s.

We have also seen significant shifts in the nature of settlements and how assets are ordered by couples considering marriage and the courts.

A House of Lords’ ruling in 2000 in the case of Martin and Pamela White, for instance, was viewed as a landmark in that it attached greater weight than ever before to the role played by a housewives and mothers in providing a platform for generating family wealth (https://hansard.parliament.uk/Lords/2023-03-08/debates/3AB3D708-24E5-4FF2-8481-05EFA27E2593/DivorceFinancialProvision).

The Supreme Court’s decision in 2010 on the role played by marital contracts was also regarded as groundbreaking but has not yet led to their being given full legislative weight (https://www.supremecourt.uk/cases/uksc-2009-0031.html).

Likewise – and away from the courts – there has, for instance, been an undeniable move away from the lifetime award of spousal maintenance (known as ‘joint lives’ orders’).

If a clean break lump sum is not possible at the time a settlement is reached, any maintenance is now more likely to be limited to a fixed period adjudged long enough to allow a financially weaker spouse to establish a life on their own or resume their career.

Although most practitioners acknowledge the need for reform – perhaps for greater clarity – there is one apparent bone of contention.

The House of Lords’ debate did hear concerns about the complications which can occasionally arise due to judges having immense discretion under the 1973 legislation.

As things stand, that means two judges might offer very different interpretations of what constitutes a fair financial settlement based on the same set of facts.

This can make it difficult when advising clients because of the broad range of potential outcomes.

Even so, I firmly believe that an element of discretion is essential in dealing with the breadth of circumstances which present themselves in family law cases.

It is right that very skilled and experienced judges have the power to weigh up what they regard as a just outcome on the individual evidence given to them in court.

Just as relationships are very personal and particular, the details of financial arrangements need to reflect individual circumstances and, therefore, should arguably not be subject to too rigorous or restrictive a formula.