Will the new year bring greater parity in the rules governing the division of capital assets and future income on divorce? asks Kevin Hand

It is a well-known truism that Christmas often brings family relationship problems to a head.

Combined with the fact that the new year is a time for resolutions and fresh starts, this means that, sadly, January is a busy period for divorce lawyers.

Looking back over the past couple of years, one of the most striking features is the dramatic rise in the big money cases.

Since White v White in 2000 firmly established the 'yardstick of equality division' in divorce cases, we have seen a plethora of cases where wives have won increasingly large sums in the courts.

The 'crushing victory' of the alleged 10 million sum awarded to the ex-wife of diamond heir Francois Graff in November last year was among the most high-profile of such cases.

The 50/50 rule may well now be firmly established as the accepted measure for the division of capital assets on divorce, but when dealing with the division of future income, the courts have traditionally adopted a one-third approach.

While this practice is no longer followed, a new formula has yet to be agreed - and it has always been understood that different rules will apply to the division of capital assets and the division of income.

However, one of the last cases to be heard in 2003 - in private at the High Court in London - has raised the spectre of the 50/50 rule being applied to income also.

In this case, the judge deducted the husband's mortgage payments and school fees for the couple's children from his net income and awarded the wife half of the rest, 350,000 a year, in addition to her lump sum.

The husband has appealed and the Court of Appeal is likely to rule soon.

The outcome of the appeal is awaited by divorce lawyers - and shortly-to-be-divorced husbands - with anticipation.

Should equality become the yardstick on income, it would have a huge impact on divorce settlements.

In particular, in the case of 'clean break' divorces, a wife could be looking to receive a lump sum representing way in excess of 50% of the capital.

This development comes at an interesting time.

The whole issue of family law within the European Union is under scrutiny - with both the European Commission and Parliament focusing on the feasibility of harmonisation across all member states.

A number of member states have a system akin to the US concept of 'community property' - whereby the pool of assets acquired during the marriage is divided equally between the parties.

A burning question is whether the European powers-that-be are intent on bringing the UK system into line with this.

And if so, what would the impact be? While the community property approach has the advantage of creating certainty, it removes the discretion of the court - and this is a major weakness.

It prescribes a rigid formula to be applied to every set of facts, when in reality because divorce cases are about real people, and real lives, each case is completely different.

Those in favour of statutory certainty will argue that it removes uncertainty and saves on costs.

They have a point.

However, at the same time, it would have the effect of turning financial disputes within family law into little more than a formality.

The discretion of the court is central to our system of family law in the UK and should be preserved to allow room for judges to ensure the best outcome for all the parties concerned.

Kevin Hand is head of the family law department at London-based GSC solicitors