Family law specialist expresses concern over the Divorce (Financial Provision) Bill and calls for more flexibility for Judicial discretion
Nicola Goodman, family law specialist and partner at Guest Walker & Co, has expressed some concern at the clauses drafted in the Divorce (Financial Provision) Bill, which is currently working its way through the House of Lords. Whilst still in its embryonic state, if it is passed this will be the first time any Act of Parliament has dealt with the criteria for financial remedies in divorce since 1973. Currently on its third reading, the possibility of it becoming law is not as remote as is often the case with Private Member Bills such as this.
Nicola commented: “The new Act is designed to define the role of the Courts dealing with family finances. There will be a strict emphasis on equality, a slight concession to compensation where absolutely necessary and a cursory reference to the needs of the individual parties. My main concern, however, is to what extent the needs of children and how they are dealt with during the break-up will be considered. At present I worry that there seems to be little movement for Judges who may feel straight-jacketed in their role of family arbiter.
One positive concession to modernity is the recognition of pre and post nuptial agreements. The Courts have in fact been recognising the legality of these agreements recently but it is helpful to see them validated by statute.
The provision at the moment focuses on trying to direct the way Judges make their decisions. This is not an entirely bad thing, given that the Supreme Court has been asking for some statutory guidance for some time. If the new Bill gets passed however, this focus will be more on the set guidelines given and less on judicial discretion, which could have adverse effects on modern families, who don’t necessarily fit into the neat criteria required to make this work. Not all families come with one house, a car and 2.4 kids. In the real world, there are families with step-children, separate accounts, assets mingled in from previous marriages or relationships, a less stable housing market and work insecurity. I would prefer a greater emphasis upon the needs of the children and greater concession to the more complex financial model for modern families.
I also worry for the needs of a dependant spouse who will find that his or her maintenance is restricted to a set term of 3 years. The possibility of long-term payments has often led to a clean-break, where the payer buys out that claim to get rid of ongoing commitment. Limiting the years for maintenance will therefore stem the flow of some clean break settlements.”
Nicola concluded: “We will have to see how it all works out in practice and if the new Act will remain as fit for purpose for over 40 years as its predecessor did. I just hope that while the aim is to provide more clarity and certainty, the Bill does not replace our bespoke, made-to-measure system with an off-the-peg, one-size fits all substitute.”
Nicola currently runs a free Legal Advice clinic at the Guest Walker & Co offices on Shambles, York, every Tuesday afternoon for clients with family or matrimonial problems. She has also just produced a free Advice Sheet for clients on ‘how to decide finances’ when going through a divorce.
Nicola commented: “There are currently a number of financial options to consider when you are going through a divorce, and whilst my role is to advise my clients on which is the best route to take, it is in their interests to be as fully briefed as possible on the options available. My Advice Sheet has proved very helpful already, as clients can take it home and read it at their leisure. Allowing someone time to think and consider options rather than rushing into things often results in the best outcome for all”
To book a slot at the Free Legal Advice Clinic call free on 0800 587 2438.