Is no-fault divorce a missed opportunity for reform?

Is no-fault divorce a missed opportunity for reform?

It’s finally official: the Government has published regulations confirming that the new no-fault divorce system will come into effect on the 6^th of April. We had, of course, been told for some time that that would be the start date for the new system, but until the regulations were made, nothing was official.

So we are to have a new and modern divorce system at last.

But it may come as a surprise to many to learn that the new system is actually contained in a statute that dates way back to 1973. And that fact is an indicator that perhaps a great opportunity for reform may have been missed.

Statute amended

The statute is the Matrimonial Causes Act 1973, a name that itself is now somewhat old-fashioned – how many people still refer to a divorce as a ‘matrimonial cause’?

The Act essentially contains all of the law relating to divorce, judicial separation and nullity. What has happened with the new no-fault system is that it has amended the Act, erasing the references to the old system, and replacing them with the new.

It may seem a little odd, not to say inconvenient, to have to look for the law on divorce in an amended statute that is nearly fifty years old.

But the Act does not just deal with the procedure on divorce. It also includes the law on sorting out financial settlements on divorce (‘financial remedies’) – from what kind of financial orders the court can make, to the factors that the court must consider when deciding what orders to make.

And the basic law on financial remedies has hardly changed in the half century that has elapsed since the Act was passed.

Calls for reform

That is not to say that there have not been calls to reform the law on financial remedies during the course of the last 49 years. Quite the contrary.

One of the biggest complaints made against the current law on financial remedies is that it provides little certainty as to what sort of financial settlement is appropriate in any given case.

The current system is essentially based upon judicial discretion. There is no fixed formula to work out who should get what on divorce. Instead, judges are told what factors they should consider, and to make their own decisions accordingly. Of course, this means that what one judge considers appropriate may differ considerably from what another judge may decide.

This uncertainty means that it can be difficult for lawyers to advise clients as to what they are likely to get if the case goes to court. And this in turn can make it more difficult for cases to be settled.

There have therefore been calls to reform the system, by making it more certain as to how the law decides financial settlements.

And there have also been calls for more specific reforms. Crossbench peer Baroness Deech, for example, has long argued for a number of reforms, including making pre-nuptial agreements binding, a law providing that in most cases all ‘matrimonial property’ (i.e. property acquired after the parties were married) should be divided equally, and a law limiting the duration of most maintenance orders for a spouse to five years.

Opportunity missed

Now, whether any of these reforms should be introduced is of course a matter for debate. It may be that after a full consideration parliament decides that the present law cannot be improved.

But that is surely a debate that we should have. After such a long time on the statute book the current law on sorting out finances on divorce must surely be due for reconsideration.

And the passing of a completely new system of divorce must surely have been a great opportunity for that consideration to take place. Unfortunately, the opportunity has been missed.

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