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Family barristers question commission’s matrimonial property principles

Proposals risk reducing scope for agreements, FLBA warns

7 January 2013

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The Law Commission’s proposals to introduce a ‘clear, principled basis’ for sorting out matrimonial property disputes risk making settlements harder to achieve, the Family Law Bar Association (FLBA) has warned.

“It would be a mistake, in our view, to conclude that the present system fails to promote settlement,” the FLBA said.

Responding to ‘Matrimonial Property, Needs and Agreements’, published in September 2012, the FLBA said the majority of financial claims settled without the need for litigation because of the flexibility of the judicial process.

“Any proposal which reduces the current flexibility in favour of a prescribed or formulaic approach in relation to some elements of the award reduces the scope to reach agreements which meet the priorities of each of the parties,” the FLBA said.

The association also warned that a clearer definition of the ‘needs’ of each spouse might not necessarily lead to fair outcomes.

“The concept of needs has to be elastic so as to include a low income family as well as those whose incomes are well above the national average. A higher income family may see pension provision, holidays, entertainment, school fees etc as an essential part of day to day expenditure.

“A lower income family may not. Housing needs may range from £50,000 to £5m depending on the wealth of the parties.

“So whilst we accept there are weaknesses in the existing law, it is difficult to see how a principled basis to spousal support can be achieved without at the same time risking potentially unfair outcomes in those cases which do not fit comfortably into whichever model has been employed.”

However, family barristers were divided on some of the Law Commission’s most contentious ideas.

The commission suggested that after “short, childless marriages” or civil partnerships, the parties should receive only their own contributions to the marital assets plus what was needed to return them to the “economic position they held prior to the marriage”.

The FLBA said that “for some of us” there may be “some justification” for a more restrictive exercise of the court’s powers in the case of short, childless marriages.

“These cases may become bitterly and disproportionately contested and can give rise to the greatest feelings of unfairness, with allegations of ‘gold-digging’ levelled against husbands and wives.

“A return to pre-marital financial positions following sharing of marital assets and absent ‘significant injustice’ could provide certainty without unfairness in such cases.

“On the other hand some of us consider that these cases too have their complexities and it may be difficult to be prescriptive. For example, even in a short marriage there may be relationship-generated disadvantage, for example one party may have given up lucrative employment to support the career of the other.”

The Law Commission’s report on the issue is due to be published this autumn.

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Marriage & Civil partnership