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Law Commission to review 'needs' of divorcing couples

7 February 2012

The Ministry of Justice has asked the Law Commission to make recommendations on what is meant by financial “needs” when couples separate or divorce.

The commission will also consider how “non-matrimonial property”, property acquired before the marriage or by inheritance, should be treated on divorce or dissolution of a civil partnership.

Professor Elizabeth Cooke, law commissioner with responsibility for family law, said: “The current law creates too much potential for uncertainty and for inconsistent outcomes.

“In particular, the extent to which one party should be required to meet the other’s financial needs is far from clear. Likewise, there is uncertainty over the treatment of property brought into the relationship or inherited by one of the parties.”

Cooke said the “targeted review” of the law on needs and non-matrimonial property would complement the commission’s existing project on marital property agreements, including prenups, post-nuptial and separation agreements.

The commission set out proposals for legislative safeguards for prenups in a consultation paper early last year, without saying whether it believed prenups should be enforceable (see solicitorsjournal.com, 11 January 2011).

This followed the Supreme Court’s decision in Radmacher the previous year, in which it went further than ever before in recognising their significance.

A spokesman for the commission said it would not be carrying a “full-scale review” of financial orders on divorce, but the aim was to bring “clarity and predictability” to two areas of the law, needs and non-matrimonial property, which caused particular difficulties.

He said an additional consultation paper on the two issues would be issued later this year, with a final report being published in 2013.

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Divorce