Fundamental reform of divorce law?

The Law Commission, in its recently published consultation about the future of divorce settlements in England Wales, is looking for a “fundamental and principled” report reform of the current law as to how a couple’s assets are divided up on divorce or civil partnership dissolution.

The consultation will run until December 11 this year – and shares some ground with the Law Commissions earlier consultation on prenuptial agreements back in January 2011.

The consultation appears to be around the principle that there is little direct guidance for judges in current law as to how they should divide family assets upon relationship breakdown. The paper suggests that family courts be provided with fairly detailed strategy guidance as to what court should be trying to achieve, with an emphasis on limiting any financial interdependence with the result that both parties should achieve financial independence sooner rather than later. It does however specifically reject the Scottish three limit on financial support. However it does go on to query whether the question of financial support should even be dealt with by the court – or whether it should be better calculating by means of a standard formula.

I have huge sympathy with government efforts to try to cut the massive public debt that they inherited – and fully understand the extra financial strain imposed on divorcing couples by their legal costs. However, while some guidance would undoubtedly be welcome, I am extremely sceptical about the idea of some form of standard formula. The beauty of the current legal system in England and Wales when it comes to divorce, and family law in general, is that is flexible – no couple’s situation is exactly the same and trying to create an over simplistic simple calculation is, I would suggest, at great risk of causing significant injustice. Yet again, this government, with the best of intentions, seems to be trying to rush through such radical legislation that it doesn’t really think through the consequences.

“Those who cannot remember the past, are condemned to repeat it” according to the Spanish philosopher George Santayana. Does this government not remember the disaster of the Child Support Agency – the much hated and derided CSA – when it was proposed that child maintenance be taken away from the family courts and be replaced by a simple mathematical calculation. They still haven’t got the CSA right and we are about to see many more millions of public money spent on it to rebrand and relaunch it yet again shortly – in yet another attempt to get it right.

Let’s hope that when the details of the latest Law Commission consultation are published, that some sorely needed practical common sense is injected .