Government commissions review of Matrimonial Causes Act 1973

Should a piece of legislation that is 50 years old really be determining the resolution of finances at the end of marriages and civil partnerships? This is the question that the Government posed last week in calling for a review of The Matrimonial Causes Act (MCA) 1973.  

The need for review 

The law needs to reflect the changes in society that have taken place since 1973. As Miley Cyrus says in her recent album ‘Endless Summer Vacation’, not everyone is made for a ‘horsey and carriage’.

The law should recognise that there are many ways to be in a relationship and a family, including cohabiting without the need for a religious or civil endorsement, pre-nuptial and post-nuptial agreements are not just for the wealthy, many couples have identical housing needs post-separation, and people are living and working longer.

When the MCA 1973 was introduced, it was only a few years after the Equal Pay Act 1970 (Made in Dagenham) and the same year as the removal of the bar against married women working in the Foreign Service. The principles of fairness and public policy that reflected society at the time of the 1973 statute are vastly different from those that operate today.

In speaking before Parliament, Baroness Deech and others berate the lack of financial review with the implementation of the Divorce, Dissolution and Separation Act 2020 (which overhauled the divorce legislation upon implementation in April 2022):  

‘’The law that relates to splitting money on divorce is so antagonistic and unreformed that it undermines the alleged good points of the no-fault divorce law” (Baroness Deech) 

In a week that also saw the Court of Appeal widening the application of s.25(g) of the MCA 1973, which generally invites the Court to consider conduct as a relevant factor in financial settlement cases (itself a historical overhang) so that litigation conduct could lead to a reconsideration of the entire financial landscape (as opposed to simply a costs order), one has to wonder if the factors under s.25 MCA are symbiotic with the zeitgeist change behind no-fault divorce, and if they only feed into increased uncertainty for quantum in divorce settlements. Clients are advised on a range of possible outcomes, with their advisors making sure they understand that judges have a wide range of powers and may apply these in very different ways on the same set of facts, with some geographical trends in play the further one gets from London.

The exhaustive checklist of ‘s.25 factors’ are intended to give rise to a (perhaps) paternalistic determination of fairness, which has required overly extensive judicial interpretation to reflect modern standards of fairness and societal change. A prime example of this is the case of Radmacher v Granatio, where the courts gave effect to a pre-nuptial agreement in the absence of any specific legislation on the nature/weight of these agreements and in disregard to the public policy considerations behind the 1973 Act (that such agreements might undermine the institution of marriage). The impact of this case has been to usurp Parliament by determining what factors lead to a pre-nuptial agreement being accorded weight with a view to modern standards of fairness. As a result, every pre-nuptial agreement precedent now properly cites the ratio in Radmacher and the subsequent ‘Law Commission Consultation Paper No 343, Matrimonial Property, Needs and Agreements for a qualifying nuptial agreement’ in the place of proper and effective legislation. Although clients are advised to sign these agreements on the basis that the court will enforce them, the court retains the jurisdiction not to if for example it does not consider that the outcome will be fair and reasonable and, in particular, ensure the welfare of children under 18. The law would benefit from comparison with other jurisdictions where at the point a relationship begins there is much more certainty about what would happen if that relationship ends.

The impact of this has been a 50-year history of increasingly generous judicial interpretation of an outdated statute, which means the law is not obvious, clear, or navigable to a layperson and only solicitors benefit from such obfuscation. There has been a significant downward trend in marriage rates since 1970 (with the general marriage rate falling fourfold since 1970 (ONS GMR 1930-2010)). It seems that the most likely reason for this is couples choosing to cohabit, rather than marry. However, there is no legislation in place at present to protect separating cohabiting couples – is it that the population are so affronted by the obscurity and cost of current divorce laws that they would rather avoid the marriage institution altogether? Perhaps the real defeat to the institution of marriage is the legislation itself? Lay clients are often surprised that there is no concept of a ‘common law’ spouse.

‘The law must be accessible and so far as possible intelligible, clear and predictable’ and ‘Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion’ (Lord Bingham’s first and second principles on The Rule of Law, 2010).  

Urgent review is therefore welcomed of this outdated, and judicially superseded statute.