A private members bill that proposes radical changes to the way assets are divided when couples divorce has made it to the committee stage in the House of Lords, following a second reading on 27 January 2017. Baroness Deech has tried unsuccessfully to introduce similar bills in the previous three sessions of Parliament, but this time it appears she may be gathering support for her reforms.
The Divorce (Financial Provision) Bill* makes a number of important changes to the Matrimonial Causes Act 1973 (the 1973 Act). Key among these reforms is the provision to replace s25 of the 1973 Act with a new section that clearly delineates matrimonial and non-matrimonial property, and limits the power of the courts to award the non-matrimonial property of a party to their spouse on divorce. Currently, it can be unclear what property will be deemed by the court to be included in a financial settlement, and the weight that may be attached to the s25 factors such as earning capacity, income needs or the conduct of the parties. The proposed reforms to this section would have the effect of greatly reducing judicial discretion when deciding on financial settlements. The benefit of this would be that divorcing couples would be able to predict the outcome of financial proceedings with much greater certainty, and so practitioners would be able to advise clients more effectively. This would undoubtedly lead to reduced legal costs and fewer surprises when cases go to a contested final hearing.
However, the Bill is not without its detractors. Baroness Deech herself quoted an unnamed senior judge as describing her bill as “the crude and amateurish reform of the delicately calibrated law of financial provision following divorce”.** These kinds of comments represent the view that a high level of judicial discretion can be desirable in these cases as it allows for a judge to ensure that the parties, and any children of the parties, are adequately provided for in a financial settlement. This conflict between prescriptive legal certainty and unpredictable judicial flexibility goes to the core of the debate surrounding the law on financial provision, and it is likely to intensify as this Bill progresses in Parliament.
Jemma O’Neill (solicitor) & Edward Nicklin (paralegal)