In March 2023, marking 50 years since the Matrimonial Causes Act’s introduction, Birketts joined industry voices in calling for its urgent reform. At long last, on 17 December 2024, the Law Commission published their scoping report setting out their view on the current state of the legislation.
In a pleasing echo of our March 2023 article, the Law Commission notes that:
‘Over the years since the passing of the MCA 1973, and particularly from 2000 onwards, the statute has been interpreted by the court in a series of key decisions. The current approach taken by the court to the exercise of the discretion contained within the MCA 1973 reflects these case law developments; the statute, however, now contains no express purpose or objective, and has remained substantially unchanged since 1973. This has the consequence that reading the legislation will not explain how the court is likely to apply the factors mentioned above to resolve an individual case’.
In view of the extensive judicial interpretation that has been applied over the last 50 years, the law is not readily clear or accessible to a layperson. This is significant given how many couples cannot afford to take legal advice, and legal aid in family cases is seldom available since the decimation of public funding in this area of the law. This in itself leading to the family courts being overwhelmed and cases taking longer to resolve, as well as some separating couples never formalising their divorce or financial arrangements.
Separating couples must either pay for legal expertise to untangle the 50 years of case law and shifting interpretations, in order to understand how the Matrimonial Causes Act applies to their unique circumstances and guide their settlement; or face entering into an agreement that is not bespoke, does not benefit from this guidance and therefore potentially is ‘unfair’.
Not only is this contrary to the interests of justice (creating delay, contradictory interpretations from the experts, and feeding tensions), but it has the add on effect of often inflaming the dispute when the couple each receive advice encompassing the possible wide-ranging outcomes which then mismanage their respective expectations. In turn, and should Alternative Dispute Resolution ‘ADR’ forums fail, it increases the burden and time delays in the family court as couples invariably turn to a third party to help adjudicate their case.
The current central push to mediation and other ADR forums – in order to reduce the increased reliance on the family court – is a hard-pressed goal in this context and when the current legislation does not enable the individual to easily understand their rights and entitlement.
Indeed, even when the parties are able to reach an agreement on how to separate their assets – entering into a nuptial agreement, for example – the court retains final jurisdiction and can overturn those agreements in certain circumstances (those being increasingly further and wider than those originally identified in the pre-eminent case on nuptial agreements, Radmacher). A clear principled case, such as Radmacher, is insufficient to succinctly guide parties to a certain outcome. The only recourse is statutory overhaul. This has not been prioritised by successive governments.
Reform is certainly required.
Whilst the report does not touch in depth on issues to do with cohabitation, the Law Commission has separately made recommendations in their 2007 report, which have recently been discussed in depth by the Women and Equalities Committee (a cross-party group of MPs). The report also does touch on financial provision for children, but only beyond the provisions of Schedule 1 of the Children Act 1989 and Child Support Act 1991. However, these Acts also merit further consideration and review.
Key issues
The Law Commission’s Financial Remedies scoping report identifies several issues with the current law that require further consideration and reform:
- Lack of consistency: Application of principles like “needs,” “sharing,” and “compensation” varies widely, causing unpredictability in settlements and increasing litigation.
- Outdated spousal maintenance laws: Current provisions may require clearer limits on the term of maintenance or guidance regarding when departing from this limit is appropriate.
- Property division challenges: Unclear distinction between matrimonial and non-matrimonial assets complicates settlements (not assisted by complicating issues, such as ‘matrimonialisation’ and tracing of assets back to non-matrimonial sources in the recent case law this year).
- Nuptial Agreements: Current case law on nuptial agreements is not binding and creates uncertainty.
- Financial provision for children beyond 18: Should there be financial provision for children beyond 18, and should these claims be brought by the children or their parents.
- Pensions complexity: Issues in valuing and dividing pensions fairly are highlighted (should there be default pension sharing on an equal basis?).
- Impact of domestic abuse: Need for reform to better consider financial abuse and coercive control (redefining ‘conduct’).
- Improved enforcement: Challenges in enforcing orders require streamlined mechanisms.
Options for reform
The report discusses two reform options for the financial remedies’ framework:
- Codification: Formalising existing principles like “needs,” “sharing,” and “compensation” and length of the marriage. It would not substantively change the law but increase accessibility.
- Codification Plus: Going beyond basic codification to add detailed rules, such as specific caps on spousal maintenance duration, clear asset classification guidelines, and codifying qualifying nuptial agreements into statute.
- Guided Discretion: Identify the rules and principles underpinning the law and the matters suitable for guided judicial discretion.
- Default Regime: Complete overhaul of the current legislation, so that default settlement principles apply on marriage or divorce (such as the community property regime). This would minimise judicial discretion and bespoke settlement. In practice, this could create more issues as not every situation is predictable such that defined outcomes lead to justice.
The Birketts view
The Law Commission’s scoping report underscores the urgent need for reform of the Matrimonial Causes Act 1973, echoing calls across the legal profession for a clearer, more accessible, and equitable system. By codifying principles or implementing more detailed rules through “Codification Plus,” there is an opportunity to alleviate the burden on the courts, reduce costs for parties, and ensure consistency in outcomes.
Reform is essential not only for improving justice but also for modernising a system that no longer reflects the realities of contemporary relationships and family dynamics. Whatever system is in place there should be a mechanism for ensuring that the roles spouses play in the relationship should be treated equally, recognise relationship generated earning disadvantage and ensure that the welfare interests of children are prioritised.
It is never too early or too late to seek specialist legal advice from a member of our Family Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.