Couples could calculate how much money they would receive in a settlement under the proposals by the Law Commission to clarify the “uncertain and inconsistent” law.
Deborah Jeff, the Founding Partner and Head of Family at Seddons Solicitors in London and one of the best divorce lawyers in the UK, comments: “For too long judges and family lawyers have been left to interpret s25 of the Matrimonial Causes Act without clear guidance of what is to be achieved.In particular, since the “sharing” principle was established in 2000, uncertainty has arisen in cases where needs can be easily met and there are assets available thereafter still for sharing.
“In these cases, what can be classed as “non-matrimonial property” and how it should be treated on divorce are particularly highlighted. For example, if one party enters the marriage having already established a business, what part of that business should be deemed to be non- matrimonial asset, and therefore not to be distributed on divorce? Should it be the value at the time of marriage plus interest added? Or perhaps a “springboard” was already in place to launch the business to where it is by the time the couple divorce, therefore meaning the majority of the business value now is non-matrimonial? Should the other spouse be allocated part of the value of the business in any event regardless of whether it is non-matrimonial property to reflect their contribution to the family in another way during the marriage?
“It would give family lawyers greater guidance and keep costs to a minimum for clients if some structure for these issues was provided rather than allowing the court to continue to develop this issue in case law.
“It is fair to say that in the majority of cases before the court, the needs of the family (and particularly any children) will determine the outcome. Needs will always triumph over any other factor such as assets brought into the marriage by one spouse, and I cannot see that changing as a result of this consultation. The needs of a family who just have enough wealth to house one spouse will be very different to the needs of a family with several properties, children being privately educated and a private income.
“But it may mean that even settlements with few assets which are driven by needs can still be structured differently with a clearly defined aim set out in statute, such as the period of time over which spousal maintenance should be paid.
“It certainly makes sense for the Law Commission to consult regarding needs and property in divorce as supplemental to the consultation regarding pre- and postnuptial agreements. These issues invariably coincide. For example, imagine a prenuptial agreement where all the wealth of one party is inherited and is ring fenced from distribution in a future divorce. If at the time of divorce the only funds between the spouses are the inheritance, it is most certainly the case that part of the inheritance will be used to house the children of the family.
“Clarity of the objective of applying the s25 factors will be of immense assistance to lawyers, regardless of whether it is a case based purely on needs or it is a “big money” case. Without doubt this will encourage earlier settlement and focus minds on the objective rather than leaving such objective to the interpretation of the judge or practitioner. This will encourage consistency in outcomes rather than the regional variations we are presently prone to in the family justice system.”
Seddons (http://www.seddons.co.uk/) is a 20-year-old central London law firm (based at 5 Portman Square) with a total of over 70 staff, including 19 partners. Chambers notes ‘This team offers clients the full range of family services, and is particularly noted for its expertise on divorce proceedings’ and the Legal 500 says ‘Deborah Jeff provides an excellent level of service at Seddons’.