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FLBA addresses Law Commission’s proposals on matrimonial property, needs and agreements

Response to Law Commission consultation published

The Family Law Bar Association has published its response to the Law Commission's consultation on matrimonial property, needs and agreements.

The FLBA does not demur from what it understands the Law Commission's rationale to be: the current law is ill-defined and inconsistent; it is impossible to discern any objective that financial provision is designed to achieve; the current law is inaccessible; and if qualifying nuptial agreements are to be binding, subject to meeting the parties' needs, there is required a proper definition of 'needs'.

However, it asks the Commission to consider the following positive factors which support the existence of a system which retains a significant discretionary element:

"(a) the current discretionary exercise means that each decision is fact specific and tailored to the individual circumstances of the parties;

(b) thus, the current system is generally perceived as being fair;

(c) the current system strives not to discriminate – whether for or against husbands or wives, breadwinners or homemakers;

(d) the current system is flexible in that judicial interpretation of the Matrimonial Causes Act 1973 has allowed the law to adapt to changing social norms and expectations. The survival of S.25, in particular, for almost 40 years shows the real benefit of a common law system of judicial interpretation of the primary statute."

The FLBA considers that the present system promote settlement, partly through the "highly successful" FDR process.

It adds that "[t]he principle that each case turns on its facts is what drives the essential fairness of the process."

The Association acknowledges a division in views expressed concerning the definition of 'non-matrimonial property' and concludes:

"Overall, whilst some of us do support an attempt to provide a broad statutory definition of non-matrimonial property, the majority do not support any change in the existing position, which, on the basis of the case law, already has as its starting point the exclusion of non-matrimonial property from the sharing exercise save to meet need, but has the flexibility to prevent hardship in individual cases."

The Law Commission aims to publish final recommendations in autumn 2013.

To read the FLBA's response to the consultation, please click here. The consultation document itself is available here.