REVIEW OF FINANCIAL DIVISION ON DIVORCE13th Sep 2012
The Law Commission opened the consultation stage on Matrimonial Property, Needs and Agreements today. In brief, the Consultation Paper, following an earlier consultation on marital property agreements (or Pre-nuptial agreements), focuses on two issues in resolving financial disputes following separations.
Firstly, the paper deals with the needs of the parties. Currently, the needs of the parties are one of a number of factors taken into consideration by the courts when dealing with financial matters following the breakdown of a relationship. When currently assessing needs, the parties can usually assess needs by reference to examples from previous cases, or their own records. However, with a view to creating clarity and consistency in this area, the paper asks for our opinions as to how the needs of the parties should be assessed. In brief, the paper assesses two options; ensuring or enforcing independence by way of a cap or by use of a formula based on length of marriage, age of children and age of the parties etc.
Secondly the paper deals with the assessment of non-matrimonial property, which could include gifts to individual parties, inheritance or property owned before or after the marriage. The paper outlines that, currently, there are difficulties in defining such property and assessment needs to be made as to whether such property should be taken into account. As an example, the Law Commission outlined that a pre-marital property, inherited from parents of one party to the marriage, in which the parties have been living as their marital home for the period of the marriage, would pose a problem. The paper assesses that, in this example, factors such as the amount of time spent in the property or whether any children of the family are being raised in the property could be useful factors when assessing such non-marital property. The Commission outlined that this area is in need of clarity and are asking for our views as to how to provide this clarity.
Coles Miller’s Family and Matrimonial Department has welcomed the need for reform and clarity in the ever changing area of financial settlements following separation, whilst recognising the fact that each case is unique with its own priorities and complexities. For more information, including a video and an informative podcast please visit the Law Commission's website.
For further details contact Emma Hamilton Cole.