The Government has taken the first step towards implementing the Law Commission's recommendations in its report on Matrimonial Property, Needs and Agreements. It has asked the Family Justice Council to provide guidance on financial needs and it is expected that this will be produced later this year.
The intention is that divorcing couples will have a better idea of what they should expect a financial settlement to look like. It is also hoped that it will reduce the regional variation in the approach taken by different courts to how need should be interpreted and that it will similarly assist mediators to support couples in reaching settlement.
This is a welcome move. Guidance as to likely outcome in financial cases would be a positive step for practitioners and divorcing couples alike. Providing more clarity as to what a realistic settlement looks like should encourage more negotiated settlements and reduce stress, anxiety and cost for the parties. Increased consistency should make it easier to manage expectations and reduce the impact of the current postcode lottery.
Undoubtedly a primary aim of the guidance will be to assist the increasing number of litigants in person in the wake of the legal aid cuts, and perhaps we might expect a similar approach as was taken in the new CAP in terms of a more accessible tone and presentation.
Of course we will have to wait and see just how useful the guidance is and to what extent it mirrors current practice. Will needs be confined to the most basic of requirements for a person to live, will they be generously interpreted, or will interpretation depend on all the circumstances of the case? There is a tension between offering certainty on the one hand and having the flexibility to do justice in each individual case on the other. It's an unenviable task.
In the meantime the government is also considering the Law Commission's other recommendations including whether there should be legislative change in relation to prenuptial agreements and the viability of formulaic guidance for separating couples. An interim response to the Law Commission's report is expected in August 2014.
Tracey Dargan is an Associate in the London Irwin Mitchell team specialising in the financial aspects of high value divorces, disputes arising from the breakdown of a relationship between unmarried people and child related disputes.
Hayley Trim is a professional support lawyer working with the Irwin Mitchell Family and Contentious Probate teams across the country. She previously practised as a specialist family solicitor in London.