Britain has gone through huge changes in the 30 years since the Matrimonial Causes Act.

Lawyers argue that updating divorce law to cope with this requires broad public debate, writes Mark Smulian

The last time Parliament looked at the law on calculating financial settlements on divorce, Edward Heath was prime minister, the Osmonds were number one in the pop charts and a reasonably powerful computer was the size of a bungalow.

Much has changed since 1973, yet for something that affects 300,000 couples a year, this area of law had been surprisingly static.

Things began to change with White v White [2001] 1 AC 596 HL, which introduced the idea that assets should be divided equally unless there was some compelling reason otherwise.

But there is a view among solicitors specialising in this field that the effect of this and later judgments has been to make law in a controversial area without an appropriate public debate on what it should be.

In July, the Law Society launched a consultation on its own package of suggested reforms both to clarify and modernise the law (see [2003] Gazette, 17 July, 5).

The issues are set to be further discussed in a session at the Society's annual conference later this month.

Jane Craig, immediate past chairwoman of the Solicitors Family Law Association and a partner with London firm Manches, was a member of the working party which drew up the Society's proposals.

She stresses that the working party did not want to drop any of the Matrimonial Causes Act 1973 - as some have misinterpreted - but to add a section giving guidance on what weight courts should attach to the 16 factors that the Act says they should take into account.

Apart from according priority to the needs of any children, there is no such steer at present.

Richard Sax, another partner at Manches, explains the problem this causes: 'We need greater certainty to advise our clients on what is a realistic solution.

Section 25 of the 1973 Act sets out the factors to be taken into account but not in any particular order, nor is there anything in the statute to say that one should be taken before another - other than to look after the interests of children first.

'White v White introduced a concept of fairness and other matters that have made things less rather than more clear.

There ought to be an addition to the statute to reduce uncertainty.'

Ms Craig says the working party did not take the view that all cases should be decided on a 'formulaic 50/50 approach'.

She explains: 'Different approaches are needed where the assets exceed the family's needs and where they do not.

If there is one house, one car and so on, then a 50/50 split is pretty useless.'

But with all factors except minors' needs having equal weight at present, a concept of a woman's 'reasonable requirements' grew up over the past 30 years as the courts sought a means to arrive at divisions of assets.

Ms Craig says of this concept, which has now been altered by White v White: 'It was very unfair to women.

It meant that even if a man had 100 million, a woman could be told "4 million is all you need to live on, luv".'

Women were not accorded anything for raising children or looking after family and home matters, which Ms Craig says the courts should evaluate in settlements.

Peter Watson-Lee, chairman of the Law Society's family law committee and a partner in Christchurch firm William Thompson, says Parliament should produce simple guidelines because 'it is surely not satisfactory when you can go to six judges and get six different outcomes'.

He adds: 'It needs a public debate on the underlying principles of what should happen in divorce cases, and I'm hoping to start that at the conference.

There are 300,000 cases a year going through the system and if the public cannot grasp the principles, it is an issue.

Reform is well overdue.'

The Law Society consultation also includes a series of process improvements, such as abandoning the terms 'petitioner' and 'respondent' in favour of 'husband' and 'wife', and requiring both parties to provide a schedule of assets, liabilities and income before ancillary relief proceedings.

It also recommends allowing judges to take pre-marital agreements into account.

Mark Harper, a partner at Withers and also a member of the Law Society committee, says White v White modernised the law, but 'created even more uncertainty'.

'It is not very satisfactory from the client's perspective for the Court of Appeal to say "we can't tell you all the answers and some cases will just have to be litigated", 'he says.

Mr Harper says that since White v White, the courts have been disposed towards 50/50 splits unless some special factor applies.

In Cowan v Cowan [2001] 2 FLR 192, for example, it was held that Mr Cowan, who had made his money from a tearable roll of bin liners, was entitled to more than half the family fortune because his exceptional entrepreneurial skill made him the greater contributor.

In Lambert v Lambert [2002] The Times, 27 November, CA, Mr Harper says, the Court of Appeal said variations from the 50/50 norm 'should be very exceptional, for example where one party was an outstanding figure in sport or the creative arts and that was the source of their wealth'.

Mr Harper adds: 'The problem is we still can't predict the outcome in court.

We have not had a decision, for example, on what happens when the husband built up all the assets before the marriage or if it was all inherited.

'There is still significant doubt about what the law really is.

Clients think if there is doubt and a large amount of money at stake, they may as well litigate.'

He argues that English law has moved by stealth towards the Californian concept of 'community of property', where anything built up during the marriage is split equally without exception.

'Is it right for judges to change the law quite radically without research or public debate on the right approach?' he asks.

'The government shows no interest in this area, but it needs to be looked at.'

A related issue that is occupying the minds of solicitors in this field is the status of cohabiting heterosexual couples.

This has been an issue for many years, but was thrown into relief by the government's announcement that it intends to grant rights to same-sex couples through a procedure to register relationships.

Ms Craig stresses that reforms proposed by the SFLA do not say that heterosexual couples living together should get the same registration rights as are proposed for same-sex couples.

Registration gives same-sex couples rights they cannot acquire, because they cannot marry, whereas heterosexual couples have the option to marry if they wish.

For those who do not, she says, a 'safety net' is necessary.

'There is a framework of protection needed.

There is still the idea of a common law wife, but they can be left in very difficult circumstances if a relationship ends,' she says.

Mr Sax calls the status of unmarried couples who live together 'extremely unjust at present'.

He explains: 'There is no right to inheritance, which means people are worse off than same-sex couples would be under the government's proposals.'

In addition, he favours a number of less fundamental reforms to smooth the divorce settlement process, in particular interim lump sum and property adjustment orders.

'There is no provision for them and it needs legislation.

It would help in cases where perhaps a house needs to be sold before another can be bought,' he says.

Mr Sax also criticises the enforcement system for divorce payments as 'very inefficient'.

He would like it to be possible to seek an enforcement summons and choose a remedy once it is granted, rather than before.

In his experience, bank accounts against which orders are sought can prove to be empty by the time they are granted.

The Law Society's working party found that judges already operate their own informal and individual codes for arriving at decisions on ancillary relief.

The hope is that the government will see the merit in formalising something that is already happening.

Mark Smulian is a freelance journalist