The review of financial remedies commissioned by the Law Commission in April 2023 will finally publish its conclusions in a ‘scoping paper’ on the 18th of December.

Although the conclusions will soon be public, the law commissioner Professor Nick Hopkins recently warned a Westminster Legal Policy Forum conference that the paper will not contain any concrete recommendations for the government. It will only be a ‘toolkit’ the government can use to decide if financial remedies should be reformed and, if so, the direction reform could take.

Although this will not provide a roadmap for possible reforms or an idea of the timeframe such reforms could take, if the government does conclude there is a need for reform, it will probably be followed by a full public consultation in which the thoughts of family lawyers and other key stakeholders will be encouraged.

Why has there been a review of financial remedies?

Divorce almost always has a huge emotional toll on the couples going through a separation. A large part of this strain is linked to finances. Every year tens of thousands of couples are forced to use financial remedy orders to try and find the fairest way to split their assets and manage the sale and transfer of any property, ongoing maintenance for their former partners and how their children will be looked after going forward.

However, the laws governing the use of financial remedy orders have their roots in the Matrimonial Causes Act 1973 and the world today has become a very different place over the last half century. As such, it was widely felt the 1973 Act is out of date and unable to ensure fair and consistent outcomes for divorcing couples.

In response the Law Commission decided it would carry out a detailed analysis of the current laws on financial remedies. Their findings would allow them to identify the problems within the current framework, propose reformative solutions and suggest alternative courses of action. In particular, the review was designed to examine:

• The discretionary powers given to judges over the division of financial assets.
• Whether there is a need for a clear set of principles, supported by law, that would give divorcing couples greater certainty in terms of what to expect should they progress a financial remedy order.
• What powers are needed to make orders for children over the age of eighteen.
• How maintenance payments for an ex-spouse or civil partner should work.
• How the courts should view the behaviour of both parties when making financial remedy orders.
• How pensions can be more consistently and fairly dealt with during divorce.
• The factors judges should consider when deciding which financial remedy orders to make or if financial remedy orders aren’t relevant.

What will the scoping paper cover?

It is believed the scoping paper will focus on four potential models:

1. Collating existing caselaw to allow the court to maintain discretion.
2. Collating existing caselaw to identify specific areas where the law is not yet settled and could be strengthened.
3. An examination of the principles and objectives currently guiding the court’s discretion.
4. A matrimonial property regime that would tell couples how property is likely to be divided on divorce before they are married.

The scoping report is also expected to look at pre- and post-nuptial agreements, spousal maintenance, pension division and the court’s powers in relation to the care of children aged 18 and over.

What can we expect once the Law Commission’s scoping report has been published?

As we said, although the findings are eagerly awaited by those involved in family law, they will provide little more than a series of recommendations for the government, an outline of where the current financial remedies system could be improved to give divorcing couples more certainty by bringing the current framework more closely in line with the world we live in today.

From there, it is the government’s decision as to whether they use the findings as the basis for an overhaul of the current legislation, procedures and processes.

We will continue to follow and report on progress, but should you require advice on or assistance with a case involving financial remedy orders or the division of property, pension or other assets, please contact us today.