It’s been five decades since the Matrimonial Causes Act 1973 was introduced.

We’re guessing that’s longer than your own marriage lasted? Considering the average couple only last for 8 years before getting a divorce, it certainly wouldn’t be surprising.

Society has changed a lot since 1973. Yet the laws surrounding marriage – or more importantly, divorce – haven’t been officially updated to reflect this, including those concerning the use of financial remedy orders. Orders which determine how any finances and assets are divided.

Going through a divorce or ending a civil partnership can be a hugely disruptive and consequential period for couples, particularly when it comes to their finances. Which is why, half a century later, the Law Commission has launched a review into the current laws – to determine whether they’re still working as well as they did in the 70s or are in dire need of 21^st-century reform.

The current issue with divorce financial orders

One of the main issues with the current law relating to financial remedies – aside from the fact that it’s several decades old (!) – is its discretionary approach.

This has enabled it to evolve over time, particularly with respect to the oldest and most outdated orders. For example, the notion of the ‘financially weaker’ party having only their ‘reasonable requirements’ met has shifted, adopting a more modern concept of dividing assets fairly.

However, this discretion has also led to great uncertainty.

The financial order you would have received 10 years ago is very different to the one you might receive now. And whilst discretion allows for a tailor-made solution for each couple, it also reduces predictability – and this may be leading to an increase in litigation cases.

What’s more, according to a recent analysis conducted by the Ministry of Justice, 28,865 divorce applications were made between January and March 2023 – but only 11,432 financial remedy applications. This suggests couples may not be fully aware of their rights, and the types of financial orders that can be made during divorce proceedings.

As such, it’s hoped the Law Commission’s review will lead to reform of the original 1973 legislation, which recognises the world we live in now – addressing the unpredictable nature of financial remedies and ensuring the outcomes delivered are fair and consistent.

A potential (long overdue) solution

Over the next few months, the Law Commission will carry out a detailed analysis, which considers the financial orders made by courts in England and Wales. The aim is to pinpoint any problems with the current framework and determine what the options for reform might look like.

The review will consider the potential for change in areas such as:

• the discretionary powers given to judges regarding the division of financial assets
• the powers given to the courts to make decisions for children over the age of 18
• how maintenance payments for an ex-spouse or civil partner should work
• the consideration given to the behaviour of separating parties
• orders relating to pensions and whether they’re overlooked
• the factors considered when deciding which, if any, financial order should be made

An extensive scoping report will then be published in September 2024, which will hopefully provide the basis for a full review and lead to financial remedy reform in the near future.

About to start divorce proceedings?

Financial remedy orders are in definite need of an update – and the Law Commission’s review is certainly a step in the right direction. However, it’s many months until the results will be published, and longer still until any reforms actually happen. So what if you’re going through a divorce right now?

Whether your breakup was amicable or not, dividing assets in divorce can be a tricky path to navigate – which is why it’s important to seek the independent advice of a skilled and knowledgeable legal team. Such as our team of family law experts, here at St Helens Law.

You’re bound to have many questions about the divorce process – particularly concerning divorce financial orders and how to secure a fair outcome. Our specialist family solicitors are on hand to address all of your worries and help you find the ideal solution for you.

With many years of experience in divorce law and civil partnership dissolution, we have acted on behalf of both clients who are concerned about the amount they’re set to receive and those who want to protect their assets – and, as such, have a solid understanding of the fears most people have regarding their financial future following a separation.

We also appreciate the importance of maintaining a collaborative approach throughout the process.

Our family law solicitors can provide practical and strategic advice, ensuring the best interests of you and any children involved in the case. Wherever possible, we always prioritise alternative dispute resolution methods – such as mediation and arbitration. But if formal litigation is necessary, we can help with that too, offering support and effective representation.

An initial consultation with our divorce solicitors can be booked free of charge. So if you do have any questions on divorce and financial remedies or would like advice on the best way to proceed with your legal separation, why not get in touch and arrange a time and date that works for you?

Give us a call on 01744 742360. Or if you prefer, fill out the online form on this page and a member of our family law department will respond as soon as possible with further information.