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Family Justice Council asked to act on Law Commission's recommendation concerning matrimonial needs

New guidance to be published later this year

The Ministry of Justice has asked the Family Justice Council to take forward the Law Commission's recommendation to clarify the law of "financial needs" on divorce or dissolution of a civil partnership.

In March 2014 the Law Commission 'Matrimonial Property, Needs and Agreements' report found there was confusion about how one person should be required to meet the other's financial needs after their relationship has ended. However, the Ministry of Justice considers that under the current law the exact meaning of 'needs' is unclear and there is confusion about the extent to which one spouse should be required to meet the other's needs and for how long.

Justice Minister Simon Hughes said:

"We want separating couples to have the best information available to help when they approach the difficult and emotional separation process. This new guidance will lead to a better understanding and more realistic expectations of what they will expect to receive as financial settlements and enable swifter and better resolution of disputes.

"We are committed to making sure that when couples do make the decision to separate they make use of mediation rather than go through the confrontational and stressful experience of going to court. This new guidance will help mediators give advice to separating couples so that they can settle disputes out of court. In those cases that do go to court it will also help the judiciary and prevent regional variations in the interpretation of 'financial needs'."

New guidance will be published later in the year and is intended to help:

The MoJ says that the Law Commission's report put forward three main recommendations:

  1. written guidance to define and explain financial need;
  2. an assessment of the feasibility of producing numerical guidance to calculate the likely financial outcome of divorce or dissolution; and
  3. making qualifying nuptial agreements statutorily binding through amendments to the Matrimonial Causes Act 1975.

The Ministry of Justice is taking forward the first of these recommendations and is currently considering the law Commission's report more fully, including considering the next steps on pre-nuptial agreements and the feasibility of producing numerical guidance. An interim response to the report will be published in August 2014.

Alison Hawes, Partner at Irwin Mitchell, said:

"It is very welcome to see the Government investing both time and money into providing clarity around this hugely important issue, which will not only even out regional variations in how cases are dealt with, but also provide practical guidance to couples about the law so they can better plan for the future.

"Such guidance will also be welcome by the family law community, as it will allow specialist lawyers to provide an even greater level of support to their clients.

"However, there is a certain level of caution which needs to be considered from the outset. For example, it is a concern to see the Government suggest mediators will be tasked with giving both legal and financial advice.
"A mediator's role is to assist people to reach an agreement, with such work being coordinated alongside separate legal and financial advice. Mediators certainly give valuable information, but advice could be regarded as something that would damage their neutrality and – potentially – their overall value to the couple they are working with."

For an article, by Spencer Clarke, a lawyer with the Law Commission who was part of the report team, explaining the Law Commission's report, please click here.