The Law Commission has proposed a ‘fundamental and principled’ reform of how assets are divided on divorce. A consultation published today says that the ‘incomplete and uninformative’ law lacks a clear objective of what courts should attempt to achieve for couples when they divorce or dissolve a civil partnership.
‘The judge in the family court has been compared to a bus driver, who has been told how to drive the bus and told that he must drive it, but has not been told where to go, nor why he is to go there,’ the paper says.
In the absence of statutory provisions, the document notes courts have stated that financial orders are concerned with needs, compensation and sharing.
The paper suggests that statute law should state what courts are aiming to achieve, considering compensation for needs generated by the relationship, support to enable a transition to independence, and support for a limited time to create incentives for independence.
It raises concern that the current position, where parties can receive maintenance for years, may encourage dependency, but it rejects the Scottish model of placing a three-year limit on support.
The paper goes on to ask whether financial support should continue to be determined by the court, at the judge’s discretion, or whether it should be calculated by reference to a formula, which would replace individual discretion with greater predictability.
It adds: ‘Couples who do not go to court have to make their own financial arrangements by agreement. In doing so they need to know what their rights and obligations are, and the fact that the law is incomplete and uninformative does not help them.’
The paper follows and is supplementary to the commission’s consultation on prenuptial agreements in January 2011.
The consultation runs until 11 December.