Certainty v. Discretion in Family Law – What the Upcoming Reforms Could Mean for Couples

This spring we are expecting to see a government consultation document concerning the reform of financial remedies in divorce, cohabitation rights and pre-nuptial agreements.

With the pressures upon the courts, the government is keen to make the law more certain and predictable for couples, including seeking to give more rights to cohabiting couples and to make pre-nuptial agreements legally binding.  At present, cohabiting couples are largely treated as unconnected and pre-nups are something the court will have regard to on divorce but will not necessarily uphold.

So far as divorcing couples are concerned, there are persuasive arguments from both sides.  The law today is founded on the Matrimonial Causes Act 1973, a statute now over 50 years old, which some say no longer fits with modern thinking and does not reflect life as it is today, with many couples both out at work and both sharing household and childcare responsibilities.  In 1973, marriage looked rather different.  However, just because the law was made some time ago, does it make it unfair now? 

The 1973 Act gives the court wide discretion, allowing judges to take into account various factors, including the duration of the marriage, age and health, lifestyle, the needs of the parties and their children, and conduct.  Since the 1990s case of White v. White was decided, the court has already evolved to take the view that equality should be the starting point and any deviation from that has to be justified.  Surely all these things are still relevant today? 

Well, some say that this leads to too much uncertainty, with no two cases having quite the same outcome. One judge may make a completely different decision to another, despite exactly the same set of circumstances, the human element inadvertently causing uncertainty. 

The suggestion therefore is to create certainty, with the proposed Divorce (Financial Provision) Bill proposing a straight equal division of marital assets, property and pensions, with time limited (as opposed to possible “lifetime” provision, as we have now) spousal maintenance and child support to be payable up to the child reaching 21. 

Would this always be fair?  Maybe one spouse made significantly higher contributions. Perhaps a 50/50 division will not meet one spouse’s needs. Will disputes inevitably arise as to what 50/50 actually equates to?  Pensions, in particular, could raise a minefield of issues when deciding what an equal division should look like, especially if people are trying to resolve matters between themselves and without court intervention. “Certainty” may therefore not be as clear cut as one might imagine.  Which is the greater problem? A rigid system, or one which has us in the midst of uncertain legal outcomes, costs issues and delays?

Enforceability of pre-nuptial agreements would seem to be a very sensible step and bring us into line with many other countries. Care at the point of discussion and drafting is vital but would ultimately lead to certainty for parties who then going on to marry. 

Cohabitation law is, in some respects, unchartered territory for England and Wales so far, despite the growing number of couples who live together and do not marry.  Perhaps the need for this reform is more pressing.  What form these new provisions will take is yet to be seen, but they could line up broadly with the way finances are treated for divorce. 

Would this lead to people deciding to live alone, rather than take a risk and should it not be down to individuals whether they want to sign up to acquiring certain rights?  That said, if a person is in a financially controlling relationship, for example, the partner with the wealth is unlikely to want to share their finances, so some protection in certain scenarios seems fair.  Whilst reform is needed to protect couples who have lived together for some time, the question remains how can that be introduced and on what basis.

Will this ultimately lead to fewer people living together or marrying? An interim suggestion would be to make more information available about rights (or the lack of them) arising from cohabitation and marriage, so that couples may make informed choices.

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