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Clients, the judiciary and mediators to benefit from new guidance on splitting assets, says MoJ

Family lawyers impressed by quick response to Law Commission report, but remain ambivalent about latest action

22 April 2014

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Separating couples will be given realistic expectations when property and income is distributed by the courts following new guidelines from the Ministry of Justice.

The court has wide discretion as to how assets should be split, and one of the deciding factors is the financial "needs" of each party.

The guidance comes in response to the Law Commission report Matrimonial Property, Needs and Agreements, published in March, which found there was confusion among separating couples on how one person should be required to meet the other's financial needs after the relationship is over.

The MoJ asked the Family Justice Council to clarify the meaning based on the Law Commission's recommendation.

Julia Thackray, former head of family at Penningtons and course director at CLT, said the response was quicker than many would have expected.

"While the aim of simplifying and clarifying the issue of the needs is welcome, it may be easier said than done," she said, adding that what is needed
in each separation case is fact-specific.

Nigel Shepherd, partner at Mills & Reeve and vice chair of Resolution, said it was interesting that Simon Hughes MP had responded to the Law Commission so quickly.

"The current law works really well," he said. "The outcome is tailored to the individual. Fairness, like beauty, is in the eye of the beholder."

Thackray added that the guidance pointed to a future of family law involving more litigants in person and more mediated settlements. This, she said, was driving change in practice. 


Guidance provides realistic expectations for couples, says Hughes

“We want separating couples to have the best information available to help when they approach the difficult and emotional separation process. This new guidance will lead to a better understanding and more realistic expectations of what they will expect to receive as financial settlements and enable swifter and better resolution of disputes.”

“We are committed to making sure that when couples do make the decision to separate they make use of mediation rather than go through the confrontational and stressful experience of going to court.

“This new guidance will help mediators give advice to separating couples so that they can settle disputes out of court. In those cases that do go to court it will also help the judiciary and prevent regional variations in the interpretation of ‘financial needs.’”

Simon Hughes is minister for justice and civil liberties

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Marriage & Civil partnership