Jacqueline Major, a solicitor in the family team at Winckworth Sherwood, asks whether we are heading to the right destination on the division of assets on separation. The views expressed here are not necessarily endorsed by this publication but it is very happy to share them with readers. As ever, feedback is most welcome.
The UK Law Commission has recently announced that it is to investigate and report on two key areas of financial provision on divorce that are in need of reform. In its consultation paper it likens a family judge to a bus driver who is given a large number of instructions on how to drive the bus, but who is not told where to take the bus – only that it must be a “reasonable and fair destination”.
Dealing with property and money following the breakdown of a marriage or civil partnership has long been a thorny issue. How to get the “reasonable and fair” result, in a system where judges have discretion, has spawned much litigation. Getting to a destination in each different case is a very subjective exercise, and we have ended up with an uncertain system, with inconsistent results across the country.
The Law Commission initially set out to consider the status and enforceability of marital property agreements – commonly known as pre-nups and post-nups. The project has now been extended to cover two aspects of financial provision: first, the law relating to “needs” – looking at to what extent a spouse or civil partner should have to meet the needs of the other party following the breakdown. Secondly, how to treat non-matrimonial property – by which the courts mean property that a party acquired before the marriage, or during if received as a gift, or property which is the result of inheritance or was in some way independently generated and not connected to the relationship.