Family Law

Lord Rosebury cautioned, "Change! Change! What do you want with change? Aren't things bad enough already?" The Law Commission appears to be made of sterner stuff.

On the 11 September 2012 it launched an important consultation paper entitled "Matrimonial Property, Needs and Agreements." The consultation is seeking views on possible future amendment to s.25 Matrimonial Causes Act 1973.

As many family lawyers know only too well,  there  is no statutory objective contained within s.25. The Law Commission gives the comparison with a bus driver, being told how to drive a bus, but not where to drive it. The law reports are awash with points of principle which ultimately boil down to ‘being fair;' like beauty, a notoriously subjective concept.  Practitioners and parties must hack through the jungle of complex and often contradictory case law in search of elucidation of the principles of needs, sharing, compensation and, now, post Radmacher, autonomy.

A further point of notorious difficulty, upon which most family lawyers would not care to wager, is the treatment of "non-matrimonial property" or "inherited property" in a particular case. As Lord Nicholls opined in White, the judge should decide "...how important it is in the particular case." Since then, arguing about the status of such property has become something of a lawyerish type sport.

The consultation report and its shorter (38 page) ‘Overview for Lawyers' reviews the confused state of the current law and places that into the overarching context of there being no fixed point of principle being applied. It sets out eloquently and honestly the manner in which many of our recent appellate authorities conflict.

In summary, the consultation addresses the following questions:-

• What should the stated aim of the law be when considering the needs principle:-
  • To compensate needs generated by a relationship?
  • Support a transition to independence?
  • Incentivise independence?
• Should awards dealing with future needs be made by reference to a formula or remain to be determined by the courts' discretion?
• What might be done to provide guidance and/or an interim change in the law to promote consistency of outcome, pending more fundamental statutory reform?
• Should "non matrimonial property" be statutorily defined and treated in a more prescribed and consistent manner?

These are important matters upon which family lawyers often express frustrated opinion. You now have a chance to have your say.

Rhys Taylor, Barrister and Arbitrator (MCIArb) at Thirty Park Place Chambers.

Rhys is currently conducting a poll on the Law Commission's consultation in the Family Law LinkedIn Group. To participate, click here.  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.