Law Commission to review law on finances after divorce

The Government is at last going ahead with the long-anticipated review of the law dealing with how finances are divided among couples after divorce.

The review has been launched by the Law Commission of England and Wales, and will consider the use of financial remedy orders, making financial provision between couples at the end of their marriage or civil partnership.

The current law covering the making of financial remedy orders has essentially remained the same for the last fifty years, and inevitably there have been increasing calls for it to be reformed, by those who believe it is no longer fit for purpose.

The Government has therefore asked the Law Commission to review whether the current law is working effectively, and delivering fair and consistent outcomes for divorcing couples.

The Commission will carry out a detailed analysis of the current law, to determine whether there are problems with the framework which require law reform, and what the options for reform might look like.

Specifically, the Law Commission will consider whether there is potential for reform areas such as: whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples; what consideration the courts should give to the behaviour of separating parties when making financial remedy orders; whether pension orders are overlooked when dividing the divorcing parties’ assets; and the factors judges must consider when deciding which, if any, financial remedy orders to make.

The review will conclude by publishing a preliminary report in September 2024, which could provide the basis for a full review and future financial remedies reform. This timetable means that a government consultation on proposed reforms is unlikely to appear until at least 2025, and obviously any reform of the law will not take place until after the consultation has been completed.

Commenting upon the review Professor Nicholas Hopkins, Law Commissioner for Property, Family and Trust Law, said:

“The laws governing financial provision on divorce or the ending of a civil partnership should be as fair and simple as possible, minimising the risk of conflict, uncertainty or financial strain.

“Fifty years since the current law was put in place, it’s essential that we look at whether it is working effectively for all parties. This is a hugely important area, affecting separating couples and their children at an incredibly stressful time of their lives. It is essential that any reform in this area is very carefully considered.

“I am therefore pleased that the Law Commission will be undertaking this review, to consider how any reform of this significant area of law could be shaped.”

You can find the project’s terms of reference here.

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