The Law Commission’s December 2024 Scoping Report ‘Financial remedies on divorce and dissolution’ takes a comprehensive look at the legal framework governing financial remedies on divorce and dissolution in England and Wales. While the Matrimonial Causes Act 1973 provides the statutory basis, its reliance on judicial discretion has led to significant criticisms.

Key Criticisms of the Current Law

• Uncertainty: Wide judicial discretion creates unpredictable outcomes, making it difficult for divorcing couples to negotiate settlements or predict court decisions.
• Lack of clarity: Concepts like “needs” and the distinction between matrimonial and non-matrimonial property remain nebulous, often leading to confusion and dispute.
• Barriers to justice: High legal costs and complex procedures deter many couples from seeking court intervention.

Proposals for Reform

The Commission identified four potential models for reform, emphasising fairness and accessibility:

1. Codifying financial needs: Defining “needs” to provide clearer guidance for practitioners and judges.
2. Enhancing predictability: Introducing statutory guidelines for asset division to reduce reliance on case law.
3. Strengthening ADR mechanisms: Promoting mediation, arbitration, and other forms of dispute resolution to minimise litigation.
4. Addressing inequalities: Ensuring fair treatment of non-matrimonial property and compensating for economic disadvantages arising from marriage roles.

A Path Forward

The Scoping Report stops short of making recommendations but provides a robust foundation for future reform. By aligning with international best practices and prioritising equitable outcomes, these proposals could transform the financial remedies landscape.

Certainty and fairness must become the cornerstones of the approach to financial settlements.