Partner and Head of Wills & Estate Planning at Andrew & Co Solicitors Helen Newson writes...
Divorce Bill is a Step in the Right Direction
The Divorce (Financial Provision) Bill, a private members’ bill introduced in the House of Lords by Baroness Deech in February 2014, will receive its second reading today.
The bill focuses on financial settlement legislation as the law surrounding this is very unclear and gives limited guidance at present. Because of this it’s very difficult to advise divorcing couples what they can expect to receive as so much depends on the judge’s very wide discretion.
Guidance is available from case law but the leading judgments inevitably arise from ‘big money’ cases that go to appeal, and these are not necessarily helpful for low-income families. Also, because Legal Aid is no longer available except in very limited circumstances in this area of the law, spouses who can’t afford to pay solicitors’ fees are forced to represent themselves and with no real guidance may be at a severe disadvantage.
Baroness Deech’s bill is aimed at introducing a new system with guidelines based on the presumption of equality, or in other words, sharing the assets accumulated during the marriage equally between both parties.
If the bill is passed it will also make pre and postnuptial agreements binding, which will simplify the divorce process for those who have already agreed their financial arrangements.
The Matrimonial Causes Act came into force in 1973 and hasn’t been changed since, so reform of the act is well overdue. One thing I’ve learned, however, during my 25 years as a family lawyer is that there are nuances in each case and these need to be taken into consideration, no matter how small. So while I welcome the introduction of statutory guidelines, judges still need to be able to exercise some discretion.
Similarly the provisions relating to spouse maintenance contained in Baroness Deech’s Bill need to be considered carefully by the legislators. It proposes that maintenance should only be payable for a period of not more than three years; this could severely disadvantage many whose earning capacity may be restricted e.g. because they have the care of young children or have to re- establish themselves in the employment market.
Therefore, while I appreciate the sentiment behind this bill, I think it needs careful consideration and revision and certainly until there is a reform of the current law I would advise couples to always seek legal advice form a specialist family solicitor. For those who are worried about the cost, Andrew & Co offer a free assessment interview at which issues such as cost can be clarified and can arrange a payment plan or advise on other funding options.
Contact our experts for further adviceJulie Bailey