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Law Commission launches supplemental consultation on Matrimonial Property, Needs and Agreements

Paper questions whether financial remedies should be calculated by reference to a formula

Following its 2012 consultation on marital property agreements ("pre-nups"), the Law Commission has opened a supplementary consultation on needs and non-matrimonial property. The consultation is open to specialists and the general public. It can be accessed here.

The review is looking at two specific aspects of the law relating to financial provision on divorce:

In relation to financial needs, the consultation seeks to recommend a fundamental and principled reform of the law relating to needs. What is lacking in the law is an objective, to tell the courts and the parties what is to be achieved by provision for needs. An objective would explain what is to be paid and why. The Supplementary Consultation Paper discusses what would be an appropriate objective for the meeting of needs. The options discussed in the paper are the following.

(1) Compensation for needs generated by the relationship.
(2) Support to enable a transition to independence.
(3) Support for a limited time so as to create incentives for independence.

The Supplementary Consultation Paper goes on to ask whether financial support should continue to be determined by the court, at the judge's discretion, or whether it should be calculated by reference to a formula, so substituting greater predictability for individualised discretion.

The Commission acknowledges that for most couples the only relevant area of the law on financial orders is the law relating to needs. Even if needs are met, there is nothing left over to share.However, for some wealthier families non-matrimonial property is important.

The Supplementary Consultation Paper asks questions about:

(1) the definition of non-matrimonial property;
(2) whether there should be a rule that it is not shared;
(3) whether that rule should be subject to the further rule that it must be
shared if it is required to meet needs; and
(4) whether non-matrimonial property can ever become matrimonial, either by the passage of time or because it has been sold and replaced or has appreciated in value as a result of investment or management by either party.

The Commission has produced a brief video introducing the project, a short podcast and three separate summaries: a shorter executive summary, a comprehensive summary, and a more technical summary for lawyers.
The Commission is very keen to hear from as many consultees as possible. 

For more information about the Matrimonial Property, Needs and Agreements project, please click here.