Ashley Murray
A. Message to The Prime Minister – Stop and think again.
Following the close of the Lammy initiated ‘Fairer Shares’ (so-called) public consultation, the exercise no doubt will have ticked the Ministry of Justice box that the public have had their say. However, in reality, few members of the public will have even been aware of the exercise and, arguably, had they been, then they would have needed legal training to meaningfully answer its questions in the way presented, anyway.
That is not to say that the current government is not to be congratulated for setting about the reform of the current divorce and cohabitation law applicable in England and Wales relating to asset/resource distribution following the breakdown of these relationships. An obvious area of needed reform, which successive earlier governments have wholly failed to address for well over the last decade.
That said, I wish, however, to make it clear that that with over 50 years experience (1975 to 2025) as both a barrister on the Northern Circuit and over 27 years (1992 to 2020) as a Recorder dealing with financial remedies cases, in particular, and by specialism in practice, I find myself highly disappointed at the specifically limited scope of the divorce financial remedies reform consultation presented.
I am convinced from my extensive experience of divorce financial remedies law that the current government proposals have adopted, without any prior public consultation, an option of codification plus, which would, had they have been consulted in advance, have shown itself to be an avenue of reform in this area unsupported by divorcees, in general and the public at large. Other professional may disagree – that’s their prerogative – but they are wrong.
It is regrettable, in this context, that the government has chosen to prioritise the views of and listen only to the legal professions and academics before adopting the method of reform now being pursued. There is good Commonwealth experience (Australia and New Zealand) that reveals that such an approach, which avoids canvassing at the earliest stage the public view of such reform, is more likely to be both wasteful of public resources and, ultimately, unpopular as legislation when enacted. This current exercise bears all these same hallmarks.
The legal professions have a vested interest in the status quo and, of course, by definition they, the judiciary and academics are likely to be more comfortable with an existing system which they have operated within for over half a century. I would argue that as the first fundamental reform in over half a century to such financial division, the government within a historically important reform agenda have a duty to robustly determine the reasons why the current system, as already acknowledged, is too complicated, too slow and far too expensive. I suggest that canvassing only those who make a living in one way or another from that system is not objectively the wisest first enquiry.
The Law Commission’s scoping report of December 2024 concluded that the current system is failing to deliver an efficient, straightforward and/or reasonably costed outcome for those divorcees who access it. With that latter number being, according to the same report, c 40% only of all divorcees’ cases annually – it is a matter of real concern that the majority of divorcees do not currently engage with the court led divorce financial remedies process. This is, particularly, so, where, as things stand, the absence of a final court order means at law that the majority of divorce outcomes do not, therefore, provide a final closure to the parties’ financial relationship upon divorce.
I would, therefore, call for:- i. the government to review its initial decision to pursue a model of reform based only on a codification-plus approach and that instead it considers whether it is in the public’s interest to adopt one of the other four optins it considered, namely a ‘guided discretion’ to the legislative reform in this area; and ii.
in assisting its determination of i. above, there be national enquiry (eg by citizen forums/councils etc) of what the public and, in particular, divorcees past and present would consider should be the scope of any reform of the current system of divorce asset/resource division and the process whereby divorcing couples’ finances are determined. I suggest the present published consultation in this respect fails in formulation or terminology to be likely to encourage an extensive enough and informed public response required.
Assuming, as I must, that at this eleventh hour this will not be the Government’s route of choice, then I argue that the present wide judiciary discretionary given to a divorce judge to determine the asset distribution in each case on a bespoke basis is entirely outdated and, if continued, with the current suggested adjustments favoured and advanced by the legal professions and academics will wholly fail to remedy any of the shortcomings in the present financial remedies approach identified by the Law Commission’s recent scoping report, as above. I would argue as follows:-
B. Quicker, Simpler and Cheaper Divorce Division Outcomes:
i) The law needs simplicity of approach which can be readily understood to enable divorcing parties to clearly appreciate the likely outcome of division on divorce and therefore to be equipped at an earlier stage to resolve their differences on finances on breakdown. This should not need expensive legal advice first to broadly grasp.
ii) The law of financial remedies by judicial interpretation has become unrealistically complicated in an attempt to give couples a bespoke outcome in each case when such ambition is unrealistic in the economic circumstances of most divorcing parties and results in divorcees receiving legal advice suggesting there may be merit in resisting an early settlement in an effort to obtain a more advantageous outcome. In consequence, unnecessary additional costs and delay and heightened bitterness are factored into the divorce process from the outset and often over areas, where ultimately, the parties dispute financial asset distribution with a value not infrequently on a par or less than the legal costs incurred.
iii) The divorce financial settlement process has never been nor can be a universal panacea to right and compensate all wrongs arising from a relationship breakdown – the taxpayer and individual divorcees cannot afford such an approach and the current lack of engagement by c 60% of all divorcing couples from the Court process of securing a final order (see the law Commission’s scoping report) is testament to this.
iv) The Government’s adoption of the current approach to reform (codification plus) and rejection without prior public consultation of all four choices of reform routes is a grave mistake. It is also a denial of the public’s right to be consulted on matters of such a widespread impact. The public and particularly those who have experienced the divorce financial process should have been widely consulted in national forums before this decision to adopt the codification-plus model was made. It is not too late to review this decision or to expand the current approach to a more hybrid one.
v) The Government erroneously and exclusively consulted judges, lawyers and related academics with both financial and vested interests in maintaining the current discretionary system to financial division determination. The result is that these bodies predictably chose the now codification-plus route, which is arguably ‘the existing law with tweaks’ – which, it is suggested, will eventually reveal this government’s waste of public taxpayer resources and, again, necessitate further ‘root and branch’ reform in the foreseeable future, simply because it will not solve the underlying problems created by the current judicial discretionary approach to divorce asset division.
vi) Such adoption denies the public their effective say in a system intended to serve them. and not those who make their careers from the divorce process. The British Government appears to have learnt nothing from the experience of Australia and New Zealand where such reform has ignored a prior public debate.
vii) The lawyers do not have the answer here as their suggested reform routes are likely to do little to reduce both the current extravagant cost of divorce financial division and the ever-extending delay in finalisation of disputes. Lawyers do not pay for the divorce system we have – if they did the system would be entirely different and far more cost effective and less combative.
viii) The taxpayer and divorcees, who actually substantially fund the financial remedies process, are entitled to expect of a democratically elected government that the basis of reform for the first time in over 50 years to a court system which seeks to provide an important service to families in breakdown is first reflective of what those who access it want and is simplified, more efficient and cost effective than the current process. To date the government’s route to reform in this area has arguably failed to significantly meet any of these objectives.
C. The Reforms Needed to Financial Remedies:
i) Subject to the limited exceptions below, the law should provide that in all cases the overall division of the parties’ assets should reflect the ‘matrimonial’ assets held by the parties being equally divided and ‘non-matrimonial’ assets being divided between them in incrementally increasing percentages dependent upon the marriage duration before the parties’ separation/divorce petition.
‘Matrimonial assets’ in this context should include the value of any pension benefits accrued by the parties in the marriage (ie not those accrued before or after separation). It is submitted that most modern thinking divorcees would anticipate this would be the fair approach to divorce division before taking advice on the law.
Short Marriages:
ii) Therefore, where upon breakdown a marriage has lasted 5 years or less (ie not the current 6 years), including any seamless pre-marriage cohabitation, then primarily the law, as a first stage, should provide that there be on divorce an overall equal sharing outcome of the parties’ ‘matrimonial assets’ and a 25% sharing outcome of their non-matrimonial assets with each party otherwise individually retaining, subject to this primary division, such other assets they retain. ‘Matrimonial assets’ should include their combined pensions accrued in the marriage.
iii) If after the first stage of initial assessment, either party have outstanding reasonable financial ‘needs’ (in line with the government’s needs objective stage 1 and 2 only) not capable of being provided for from such a division (as in ii) above) then, as a second stage, and set against, particularly, the fact of a short marriage relationship – the law should enable, where the parties cannot agree, the court to consider, where it is fair to do so a claim by the weaker financial party to such additional provision from the other party’s assets to meet such needs.
iv) In addition, in all cases:-
a. where fairness requires it, the exceptional bad conduct of a party in relation to the other party which has impacted or is likely in the foreseeable future to adversely impact that other party’s financial position, then the same should be met by a greater provision of assets in favour of that party; and/or
b. where the parties have entered into a formal written agreement with independent legal advice which provides an alternative financial outcome and it would not be unfair to do so, the court should require the parties to adhere to the terms of that agreement..
Other than short marriages: .
v) Consistent with the incremental equal sharing of non-matrimonial assets held by the parties on divorce, the law post-reform should provide at a first stage that, where the marriage duration (including any seamless pre-marriage cohabitation) is over 5 years and up to 10 years, there should overall be 50% sharing outcome of such assets, where up to 15 years there should overall be a 75% sharing outcome and where above 20 years there should be an overall outcome whereby all ‘non-matrimonial’ assets are like all’ matrimonial’ assets shared equally.
vi) This would, at a glance, provide an advance view to parties of the court’s approach, if agreement is not achievable, and would, probably, equate to the majority view of an objective ‘fair sharing’ after a ‘committed’ marital relationship as opposed to cohabitation only. It would also remove the uncertainty of the present approach involving the individual judge’s exercise of discretion, the pursuit of which is arguably the main cause of both the incurrence of higher costs and delay in obtaining settlement. It would also substantially reduce the inter- party friction if such a Parliamentary approved division was the law and bring a much greater certainty from the beginning of the marriage through to the divorce conclusion.
vii) Such a sharing template would also reflect the current weaker financial party’s realistic indirect contribution to the family’s ‘welfare’ over the years, which is almost, at present, ignored and certainly almost never seen as a ‘special’ contribution to the wealth of the family in the broader sense and, thereby, it would reduce in this context the current and historic discriminatory over-emphasis on purely direct monetary contribution by one of the parties within a marriage.
viii) It would also inevitably in many divorces reduce the ‘need’ factor of the weaker financial party and probably the number of claims for ongoing spousal support post marital breakdown, thereby further encouraging the ‘clean break’ principle.
ix) The exceptions to the above approach in these longer marriages should obviously be the same as in short marriages (see sub-paragraph iii) and iv) a) and b) above) but with the adjustment to iii) above, which should in such marriage cases provide for the government’s suggested expanded ‘needs’ provision for the weaker financial party, so that where fairness requires the weaker financial party’s reasonable ‘needs’ (in line with the government’s needs objective stage 1,2 and 3 ) would be met by a greater sharing of assets in that party’s favour’
D. Bin Standish’s View of ‘Matrimonialisation’
i) The Court of Appeal’s decision in Standish v Standish endorsing the principle of ‘matrimonialisation’ whereby a’ non-matrimonial asset’ can be treated in division on divorce as a ‘matrimonial asset’ in certain scenarios should not automatically and blindly be inherited by any future reform. The interpretation adopted assumes an unfairness in sharing an asset base which has not been resourced by the effort of both parties or used/treated as being by the party with legal ownership for the benefit of both/the other spouse during the relationship.
However, it is submitted that this is an unreal and artificial approach to most marriage relationships.
ii) Such an approach may be the reflection of the relationships of the more wealthy whose ample asset possession may more readily meet their individual needs after divorce and still leave a surplus. However, in my long experience of financial remedy law practice most other married parties ‘use’ and/or expect ‘the usage’ not only of what they have but also, based upon their marital relationship, what may be coming their way in future family inheritances or simple good fortune. This contrast is the problem with an approach (as Standish endorsed) to financial remedy law to date in this country which has been born out of the case judgments of mainly high wealth London divorces which form precedents as to sharing on divorce for the less wealthy majority of nationwide marital relationships. Hence, for most marriages in breakdown, it is often the divorce process itself which marks the first suggestion between the parties that such ‘windfalls’ should be seen not as an asset to be shared equally, but as the exclusive possession going forward of the historic recipient party only.
iii) Again, this has created much additional ground for divorce lawyers to argue over. Yet divorce lawyers are not Parliament’s concern. The divorce financial remedies law system instead provides a public service for divorcees and not their paid advocates.
v) Whilst in certain situations the distinction between ‘matrimonial’ and ‘non- matrimonial’ can in future legislative reform be particularly useful in approaching a fairer division between parties who have been married and those who have not, its application in whatever scenario should be clear and more understandable and predictable to divorcees at the start of the divorce process. Ridding the future law post-reform of the Standish arguments of ‘matrimonialisation’ and certain other judge developed bespoke outcome principles will lead to a reduction of divorcees costs and delay in settlement – with due respect this would be a win-win for divorcees.