Financial Remedy: to reform, or not to reform?

This month we are joined by the Law Commissioner, Professor Nicholas Hopkins (who led the scoping report), Emma Hitchings, Professor of Family Law at the University of Bristol (who led the Fair Shares reports), and Resolution’s Family Law Reform Group chair, Jo Edwards of Forsters LLP. The Law Commission has found (in its scoping report published in December) that the current law does not provide a cohesive framework in which couples going through a divorce or dissolution of a civil partnership can expect fair and sufficiently certain outcome. In particular they found that the law lacks certainty and accessibility to the extent that it could be argued to be inconsistent with the rule of law.  They concluded that the law needs reform. We discuss:The Law Commission Scoping report: https://lawcom.gov.uk/publication/financial-remedies-scoping-report-and-summary/The Fair Shares Project: https://www.bristol.ac.uk/law/fair-shares-project/And of course Resolution’s own Vision for Family Justice: https://resolution.org.uk/campaigning-for-change/vision/  and our Domestic Abuse in Financial Remedy work https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf Emma and Jo joined us when the first Fair Shares reports were published in 2023.  Do listen to our previous episode in Season 3 episode 6: which explains the detail and data in those reports. We talk about spousal maintenance, and that whilst a lot of discussion has been devoted to the term of spousal maintenance, in fact it is the quantum that causes most uncertainty.  Emma tells us there are twice as many spousal maintenance orders made in London than all the other regions combined.  There seems to be a legitimate explanation for the ‘London difference’ in the higher costs of living in London. The Law Commission found that conduct is an additional source of unfairness that victim-survivors face in how financial remedies are determined.  Emma tells us that the Fair Shares research found that domestic abuse survivors were less likely to reach agreement than divorcees where there has not been abuse,  very few domestic abuse survivors successfully used mediation, and that 14% will ultimately have their claims determined by a judge, compared to only 4% of financial remedy cases that do not involve domestic abuse.  The Fair Shares research found that female domestic abuse survivors are in a poorer financial position than other female divorcees.  Jo told us about the incoming Australian legislation that will see family violence taken into account when determining parties’ contributions to the marriage as well as the Resolution position on the Law Commission report/financial remedies reform The Law Commission found that there is still real concern that pensions are not sufficiently taken into account.  The reality is that position has not changed that wives often keep a greater share of the home to accommodate the children, and the husband tends to retain his pension.  Should there be a default of equal pension sharing? Finally we discuss the four models of potential reform.  If you are still making your mind up about which model should be the foundation of any reform then this episode is invaluable!