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Matrimonial property, needs and agreements - the future of financial orders on divorce and dissolution

Posted: 21/02/2014


The latest figures from the Office for National Statistics (ONS) show that there were 13 divorces an hour in England and Wales in 2012, making a total of 118,140 divorces.  In addition, there were numerous dissolutions of civil partnerships.  9% of the couples divorcing had both been divorced previously.  It is expected that 42% of marriages will end in divorce which means that family law reform is of increasing relevance to a significant number of families in this country. 

For the last four years The Law Commission has been considering whether to recommend far reaching changes in family law.  On 27 February 2014, it will publish its long awaited report on matrimonial property, needs and agreements.

Penningtons Manches’ family law experts offer a quick preview of the report’s key themes and potential changes to the law:

Enforcement of pre-nuptial agreements

It is expected by many to recommend a change in the law to make pre-nuptial agreements enforceable.  It may also recommend a change in the law to codify the payment of maintenance to former spouses; to put an end to the 'meal ticket for life' concept of life long spousal maintenance; and to propose changes to simplify the way assets are divided up on divorce.

Clarification of the meaning of ‘financial needs’

Divorcing couples increasingly have to resolve their financial arrangements without legal assistance as a result of changes to public funding for legal advice and representation.  The main consideration for the great majority of divorcing couples is the meeting of 'financial needs'. 

The law gives the courts a wide discretion to make financial orders to meet the parties’ needs, having given primary consideration to the needs of any children of the family. This discretion can lead to uncertainty, especially for people acting for themselves without lawyers. It is hoped that, at the very least, The Law Commission will recommend steps to clarify the meaning of 'financial needs' to achieve greater certainty for divorcing couples about their mutual obligations. 

Treatment of non-matrimonial property

The Law Commission is also expected to make recommendations about the treatment of non-matrimonial property on divorce to clarify how this should be dealt with in cases where resources exceed needs. 

Nuptial agreements to become fully enforceable

The Law Commission will make recommendations about nuptial agreements to clarify their legal status in circumstances where more and more couples seek to regulate the financial aspects of their marriage without the interference of the court.  As long as certain criteria are met, it is expected that The Law Commission will recommend that qualifying nuptial agreements should become fully enforceable contracts under English law. 

Need for political will

Of course, even if the Law Commission does make recommendations for changes in the law, there will still be a need for political will and Parliamentary time so that legislation can be passed to give effect to its recommendations.  With an election coming up in 2015, there must be a question mark about whether the political will is there to make changes in the near future.

Family law experts at Penningtons Manches will provide a detailed briefing on The Law Commission’s recommendations and their implications for separating and divorcing couples, as well as for those contemplating marriage or civil partnership, as soon as the Law Commission’s report is published.  

Please contact a member of our team if you would be interested in this briefing or would like further information about any of the potential changes.


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