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Divorce (Financial Provision) Bill for 2nd reading on 27 June


As a Family Lawyer, I subscribe to an interesting and informative newsletter, namely Family Law Week.

It was in there that I read with interest that Baroness Deech’s Divorce (Financial Provision) Bill is to receive a second reading on 27 June 2014.

The article contained a link to the draft Bill. I opened the link with a little trepidation, as in my experience, we don’t make things easy for ourselves and often the Bills are so long that by the 10th, 20th, or 30th page we have lost interest. However, the Bill was incredibly interesting to read and, more particularly, contained suggestions that would indeed simplify the process for many of those who find themselves in the unfortunate position of having to go see a solicitor for advice as to what will happen to the matrimonial finances if they should separate.

Having been a Family Lawyer for over 18 years now, there are many areas of the law which are uncertain, and the advice we give to our clients is often clouded by “ifs and buts”. Whilst we can consider the broad-brush approach, raise positive and negative arguments that our clients may have, many people still grumble about the uncertainty in law. It is often incredibly subjective, and what one party may “need” in their particular circumstances, is not necessarily what another party would “need” in their own circumstances. Whilst it is correct that each case should be decided on its own set of distinct facts, we are often not so guided by case-law, given that most reported cases are often the “big money” cases, and that many people either do not have the funds to be included within the bracket, nor the financial means to pursue such cases through the Courts.

The contents to the draft Bill distinctly summarise the areas of consideration and, after reading the draft Bill, it is incredibly clearly drafted and, as was clearly the intention, could go a long way to simplifying the process.

Interestingly, section 3 deals with pre-nuptial and post-nuptial agreements and sets out, in simple terms, the criteria upon which such a document should be treated as binding. Having seen an increase over the last few years in the number of clients seeking advice on such documents, I remain firmly of the view that the parties should have power within them to make arrangements as to what should happen in their particular circumstances if, and not when, their own marriage should come to an end. It is difficult enough when a marriage ends, without then having to become involved in legal arguments over how the assets should be divided. If the parties can enter into a sensible and rational agreement, at a time when there is not the pressure of the split, then surely that is in their best interests.

Other than pre/post nuptial agreements, the draft Bill suggests definitions for “matrimonial property”, together with providing details as to when “special circumstances” may justify departing from the principal of equal sharing of the matrimonial property.

The Bill further goes on to set out the timeframes for payment of periodic payments, which we commonly know as maintenance. The Bill suggests that such payments should be made only for a definite period, not exceeding 3 years. It sets out that such an Order should only be made when justified by the principals set out in the section and sets out the factors which must be considered when the Court should decide whether to exercise its powers. The section defines the factors to be considered when deciding if periodical payments and/or a lump sum order should be made, defines what should be taken into account and what the Court should have regard to.

The Family Law Week article sets out the principal reasons for the private members Bill, and such reasons do make compelling reasons, these can be summarised as follows:

1. The uncertainty in the law;
2. The case law largely dealing with “big money” cases;
3. The issues around the removal of legal aid, together with the general costs these proceedings incur;
4. The fact that many different organisations have been calling for reform for some significant time.
I note that the bill will receive its second reading on 27 June 2014, and I for one will be closely watching the progress of this bill.

If you want to discuss any of the issues raised in this article or are considering entering into a pre/post nuptial agreement, please do not hesitate to contact me Justine Osmotherley on 0113 336 3323 or by email to justine.osmotherley@clarionsolicitors.com

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