Resolution of Financial Issues following Separation and Divorce
You may have read or heard in the press recently that the Law Commission has launched a Public Consultation on how the law should guide a judge's treatment of financial issues during the separation process - but what does this really mean? Could this affect you if you are considering separation? We've tried to simplify this below, and explain how the process is governed now, and how it might change because of this ongoing review.
Currently, the judge in a matrimonial case has discretion to consider the case as a whole, and has the scope to treat different cases and individuals according to his/her opinion of the facts presented in court. s25 of the Matrimonial Causes Act is the legislation which allows for such discretion, it has been deliberately drafted in this manner. However, the flip side of allowing such discretion does often mean that there is very little certainty to the outcome of a case going to court - and in our view it is important for both a practitioner and a client to have an element of certainty.
Frequently, our clients will ask us how we think a case will pan out for them, as it is natural in such circumstances to be anxious about the outcome, especially whilst trying to make plans for the future. An individual's home and their future income and living standards can all be dependent on a judge's interpretation of a case, and it is clearly an area which needs to be considered thoroughly on all sides.
As practitioners, we want to be able to give our clients a degree of certainty, direction and information, but we also want to maintain the flexibility within the law which allows the judge to view each case individually and with care, allowing the judge some scope. What we would seek to avoid, and indeed hope the Law Commission's review indeed does avoid, is the creation of very strict guidelines stipulating how a judge must act. We do not want to arrive at a "one size fits all" treatment for separating couples, for as we all know, every family and their circumstances differ, and separation will have differing effects going forward for the individuals concerned.
Here at Vines Legal, we strive to consider every client's individual position, and we realise that the personal upheaval comes at emotional and financial cost during a separation. Whilst we strive to keep such upheaval to a minimum for our clients and we would like to see more certainty, we believe it is vital to retain the scope within the law for flexibility - after all, everyone wants to be treated fairly wherever possible.
By Catherine Wenborn on 2 Oct 2012, 13:13 PM