Matrimonial property rules cannot be maintained says family lawyers group

Law Commission was backed by the Resolution on need for reform to avoid postcode lottery saying that the current laws on matrimonial property was not sustainable policy choice and the rules should be reformed on a principled basis.

The Family Law Bar Association yesterday questioned Law Commission’s plans to introduce a “clear, principled basis” for sorting out disputes, warning that they could make settlements harder to achieve.

Responding to the commission’s consultation on matrimonial property, Resolution said it shared concerns of the commission about the lack of an ‘objectives clause’ in section 25 of the Matrimonial Causes Act 1973.

The family lawyers group said there were currently “wide differences of approach” in the way courts across the country dealt with disputes, resulting in a “postcode lottery” on orders for periodical payments raising difficulties in advising some clients, but also the issue of forum shopping.

An expert practitioner would have the knowledge of whether a particular court would transfer a matter back to the home court and the possibility of a different type of order likely to be made against the home courts orders.

Resolution said that unreliable evidence meant that clients were more likely to get a joint lives order if the matter was heard at the Principal Registry of the Family Division in London rather than a less generous order if issued in Birmingham.

The family lawyers group stressed that litigants in person were unlikely to make a starting point for the payment of spousal support from section 25 of the MCA in principle or guidance. The group said that principled reform should take the place of a “reformed discretionary approach” rather than a formulaic calculation.

It favoured “non-absolute limits” on the extent of financial support for former spouses, both on the percentage of net income one should pay the other and the length of time the payments should last.

The group illustrated that the limits should not cause hardship to wives over 55 years of age who have not worked during the marriage. It also said that there was merit in reform to prompt the courts to fully and properly consider the exercise of their powers. The courts normally ignore question of any increase in earning capacity which should be reasonable for a party to expect to take steps to acquire.

Resolution said courts should be under a stronger obligation than that contained in section 25(a) of the MCA to decide whether it would be possible for support to be terminated, but the hardship rule should be retained. A term order could encourage increasing income and earning capacity and recognise the vanishing of the historic gender imbalance in earning capacity.

Resolution added that there could be guidance warning clients not expect to get ‘half’ of the other party’s income, “to provide more certainty, soften the unrealistic expectations of some claimants and avoid discouragement to payers making them seeking to reach agreements on their own or in mediation.