The introduction of “no-fault” divorce at the beginning of 2022 brought one of the biggest changes to matrimonial law for 50 years. There are more changes afoot; this month we will consider one reform that has already been enacted and one that like “no-fault” divorce is long overdue.
Legal age of marriage
Hot on the heels of the changes to allow “no-fault” divorce, the legal age of marriage and civil partnerships has been raised to 18 in England and Wales (Marriage and Civil Partnership (Minimum Age) Act 2022). Previously, people could get married at 16 or 17 provided they had parental consent. The change in law was made as part of an effort to try and address the issue of forced marriage. No marriage or civil partnership that happened before the legislation came into force will be affected. Nor will the law change affect marriages in Scotland (the minimum age will still be 16 with no need for parental assent) or Northern Ireland (16, but couples do need parental assent).
Financial provision on divorce
Sadly, with the issue of financial provision, reform is well overdue as the criteria used by the Courts to help parties reach financial settlements is nearly 50 years old (s25 Matrimonial Causes Act 1973 – the MCA). It is not the case that the law is getting old so it must need reform. Instead, there is growing uncertainty with how the law should be applied, which is leading to some cases having to be litigated.
As an example of the kind of issue that matrimonial practitioners come across because of the uncertainty, consider how separating couples deal with whether an asset is marital or non-marital. Say your partner, shortly after becoming separated acquires financial assets (an inheritance, shares windfall, even a lottery win). Is this new asset a matrimonial one? You would think that after almost 50 years of judicial decisions there would a clear answer to a question like this, but unfortunately that is not the case. This kind of dispute would likely have to go to at least an initial hearing, if not all the way to a final hearing to be resolved.
The statutory criteria set out in section 25 of the MCA is a relatively simple checklist of factors that parties should consider. The real law on financial settlements is judge lead which has the risk that decisions can be contradictory at worst or uncertain at best. The last thing that the law should be is uncertain or unpredictable as this reduces the chances of early settlement where a dispute arises.
With nearly 50 years of judge made laws on top of having a very general piece of legislation, what should be done? Unsurprisingly there is no single simple answer, but perhaps as a start some of the major judge led changes of the last 20 years could be restated in statue. This would allow proper public and parliamentary debate about what is fair on divorce in the 21st century. There has already been progress made by the Law Commission in relation to issues like the status of matrimonial agreements (pre-nups) and a review of their recommendations would be another good starting point for any law reform.
If a reformed law on fair financial provision creates greater certainty, then this may lead to less litigation which for many people can be costly and time consuming. Finally, there may also be an opportunity to allow other forms of relationship like cohabitation to be provided with formal framework, but this suggestion does open an entirely new debate for another time.
Article written by Seamus Ryan