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Matrimonial property rules ‘not sustainable’, family solicitors say

Resolution backs Law Commission on need for reform to avoid postcode lottery

11 January 2013

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Keeping the current laws on matrimonial property “is not a sustainable policy choice” and the rules should be reformed on a “principled basis”, Resolution said.

The Family Law Bar Association questioned the Law Commission’s plans to introduce a “clear, principled basis” for sorting out disputes, warning that they could make settlements harder to achieve.

Responding to the commission’s consultation on matrimonial property, Resolution said it shared the commission’s concerns about the lack of an ‘objectives clause’ in section 25 of the Matrimonial Causes Act 1973.

The family lawyers’ group said there were currently “wide differences of approach” in the way courts across the country dealt with disputes, resulting in a “postcode lottery” on orders for periodical payments.

“This raises difficulties in advising some clients, but also the issue of forum shopping. The skilled practitioner often knows that a particular court will not transfer a matter back to the home court and that a different type of order to that which would be made in the home court is highly likely to be made.”

Resolution said anecdotal evidence indicated that clients would be more likely to get a joint lives order if the matter was issued in the Principal Registry of the Family Division in London, rather than ‘a less generous term order’ if it was issued in Birmingham.

The family lawyers’ group stressed that litigants in person could not “draw any principles or guidance about the starting point for the payment of spousal support” from section 25 of the MCA.

Formulaic calculation

The group said that principled reform should take the place of a “reformed discretionary approach” rather than a formulaic calculation.

It favoured “non-absolute limits” on the extent of financial support for former spouses, both on the percentage of net income one should pay the other and the length of time the payments should last.

“For example, we are concerned that limits should not cause hardship to wives over 55 years of age who have not worked during the marriage.

“We also consider that there is merit in reform to prompt the courts to fully and properly consider the exercise of their powers. For example, the experience of some of our members is that the courts simply ignore the question of any increase in earning capacity which it would be reasonable to expect a party to take steps to acquire.”

Resolution said courts should be under a stronger obligation than that contained in section 25(a) of the MCA to decide whether it would be possible for support to be terminated, but the hardship rule should be retained.

“The law should make clear that the expectation will be that in the normal course of events, there will be a term order for spousal support.

“The expectation of a term order would encourage maximising of income and earning capacity, and recognise the narrowing of the historic gender imbalance in earning capacity.”

Resolution added that there could be guidance warning clients not expect to get ‘half’ of the other party’s income, “to provide more certainty, temper the unrealistic expectations of some claimants and avoid disincentives to payers to seek to reach agreements on their own or in mediation.”

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Family