The Divorce (Financial Provision) Bill—a radical change for family law?

The Divorce (Financial Provision) Bill—a radical change for family law?

Hilary Lennox, barrister at 5 St Andrews Hill, considers the Divorce (Financial Provision) Bill [HL] 2016-17, a private member’s bill introduced by Baroness Deech (crossbench). The Bill received its first reading in the House of Lords in May 2016, and passed its second reading in January 2017. It has been progressed to the committee stage however a date is yet to be announced.

The Bill proposes to replace section 25(2) of the Matrimonial Causes Act 1973 (MCA 1973). MCA 1973, s 25(2) contains the criteria that a court should take into account when considering financial provision, ie:

  • the income, earning capacity, property and other financial resources of the parties
  • the financial needs, obligations and responsibilities of the parties
  • standard of living
  • the age of the parties, and the duration of the marriage
  • any physical or mental disability
  • contributions to the welfare of the family, and
  • the conduct of each of the parties, where it would be inequitable to disregard it

This is the current position of the law.

Baroness Deech has highlighted some issues with this, namely that there is far too much judicial discretion, which makes it difficult for lawyers to advise on the likely outcome of financial proceedings. We can generally weigh up the odds of success for a party, and highlight the likely sums involved and to be awarded from our drafted table of assets, but we have all seen cases where the advice provided at the start of a case changes dramatically if the judge disagrees.

If the Bill is passed it will limit the judge’s discretion, and will make the law more structured and hopefully clearer.

Baroness Deech explained:

'The purpose of this Bill is to reform the law relating to the splitting of assets on divorce. The current law is the Matrimonial Causes Act 1973, section 25, which has not been thoroughly debated by Parliament for 40 years despite radical changes in society and families, and which has been the subject of calls for reform from the Law Commission, Resolution and the Centre for Social Justice. Reform is urgent because the law is uncertain. It is largely judge-made law, which bears little resemblance to the statute. Judicial discretion has led to unpredictability and conflicting decisions, which make it hard f

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