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Law Commission proposes to end big divorce awards after short marriages

Law Commission proposals published this week could prevent former spouses receiving big divorce awards after short, childless marriages.

12 September 2012

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In Miller v Miller in 2006, the House of Lords upheld an award of £5m to Melissa Miller, even though her marriage to Alan lasted only two years and nine months and there were no children.

In its consultation paper published on Monday (10 September 2012) the commission suggested that after “short, childless marriages”, the parties should receive their own contribution to the marital assets together with “only what they needed to return them to the economic position they held prior to the marriage”. The same principle would apply to civil partnerships.

Melissa Miller was living in a rented flat in Cambridge when she met her future husband and yet she ended up with the former matrimonial home, worth £2.3m.

The commission also proposed in the paper, entitled Matrimonial Property, Needs and Agreements, that there could be “starting points” for periods within which former spouses would be expected to achieve independence, but no fixed limit, as in Scotland.

Further suggestions from the Law Commission could also help wealthy partners fight off divorce or separation claims.

The commission said it “provisionally” believes that ‘non-matrimonial’ property should be excluded from the sharing principle unless it was needed to meet the other party’s needs.

Examples of non-matrimonial property were property received as a gift or by inheritance, or acquired before the marriage or civil partnership began.

The Family Justice Council would issue authoritative, non-statutory guidance to help the courts and members of the public tackle the complex issues involved in assessing need, the commission suggested.

The public could access the information through an online ‘hub’, as recommended in the Norgrove review.

Laura Brown, solicitor at Forsters, said she accepted that divorce or separation could be a “very expensive and uncertain process” but the problem with fixed formulas was that “things could slip through the gaps”.

Brown gave as an example an older couple, where most of the assets were acquired before the marriage.

“Fixed rules won’t work in every case,” she said. “There needs to be an element of flexibility.”

She welcomed the fact that the commission was not keen on the three-year limit on financial awards applied in Scotland.

“It is undeniable that certainty and clarity would benefit parties and children, and minimises money spent on legal costs and time litigating.

“It is, however, essential that certainty and clarity do not come at the expense of the courts’ current ability to tailor-make financial settlements for families, avoiding hardship and protecting the interests of any children, as one size does not fit all.”

Launching the consultation, law commissioner Professor Elizabeth Cooke said: “When two people bring their marriage or civil partnership to an end it is vital that the law is able to help them resolve their financial arrangements as quickly and fairly as possible. The current law creates too much potential for uncertainty and inconsistency.

“We are seeking consultees’ views on a range of short and long-term reforms, with the aim of bringing as much certainty as possible to this difficult area of law.”

For more see http://www.privateclientadviser.co.uk/news/family/courts-will-lose-vital-flexibility-if-family-law-becomes-formulaic

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Family