The Law Commission has published a report in which it makes recommendations regarding important aspects of the law relating to the financial aspects of divorce and of the dissolution of civil partnership.
The law gives the courts a wide discretion to make appropriate financial orders when marriages and civil partnerships are dissolved. An important element of those awards is meeting both parties’ “financial needs”. However, says the Commission, there is evidence of regional inconsistencies in how the courts approach awards for needs which creates unpredictability.
The report therefore recommends that the Family Justice Council produce authoritative guidance on financial needs. The guidance would explain that, when determining a settlement, a judge aims to enable both parties to make a transition to independence.
This would enable couples to reach an agreement that recognises their financial responsibilities to each other, and reflects what the law says on how this should be done. Guidance would also help to reinforce consistency to how the law is applied in the courts, increasing public confidence in this area of the law.
The report also recommends that legislation be enacted to introduce “qualifying nuptial agreements”. These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution.
In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met, says the report. Qualifying agreements could not, however, be used by the parties to contract out of meeting the “financial needs” of each other and of any children.
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Contains public sector information licensed under the Open Government Licence v2.0.