DIY Divorce? Prenups?
The Law Commission, which advises the Government in relation to legal matters, has proposed that rather than going to solicitors to work out the financial settlement, divorcing couples should use an online calculator to work out what they are entitled to.
This proposal would enable couples to draft their own financial settlements based on an approved formula and eradicate the necessity to fight for a settlement through Court Proceedings.
The Law Commission is urging the Government to consider creating a numerical formula or divorce calculator, which could be used by separating couples to work out how much each is entitled to receive when dividing their assets.
The guidelines for the proposed settlement formula are being prepared by a panel of judges and lawyers and, in addition to the division of assets, will also include issues such as maintenance payments. This will assist with the drafting of financial settlements, which the Court could then approve.
Any numerical formula would have to take into account matters such as the age of the couple, length of relationship, age of their children and the length of time any joint responsibilities, e.g. care of the children were likely to continue and the impact of this on the ability of either or both of the parties to work/support themselves. These are some of the issues that are currently taken into account by Divorce specialists when advising clients as to what their share of matrimonial assets should be.
A similar system is already in operation in Canada and the online calculator used there also takes into account factors such as how long the parties have been together.
Government ministers are hopeful that if the proposals come into force, then this could reduce the animosity between divorcing couples and would also reduce their legal fees.
Experts are of the opinion that the plans would give couples more control in deciding their own financial settlements and enable them to resolve a lot of the issues between themselves, rather than this being managed within the Court arena.
Various religious groups have expressed concern that the proposed reforms could lead to an increase in divorce. Historically, when laws have been introduced to simplify divorce, this has resulted in multiplying the number of couples divorcing.
Since the majority of divorcing couples are no longer entitled to Legal Aid, except for in limited circumstances, there has been a huge increase in the number of people representing themselves in the family courts.
If the proposals were introduced, this would result in a major transformation of family law. The role of Judges would be greatly reduced and couples would have much more power to reach agreements and settlements between themselves.
The Law Commission has also proposed that Prenuptial Agreements should become legally binding in England and Wales. Such agreements are already legally enforceable in some countries overseas and also in the Scottish Courts. At present, Courts in England and Wales are permitted to take Prenuptial Agreements into account, but a Court Order is still required to finalise any financial settlement, after consideration of whether the terms in the Prenuptial Agreement are fair for both parties.
The Law Commission is proposing that a contract similar to a Prenuptial or Postnuptial Agreement may be entered into by engaged or married couples setting out how their property should be divide if they were to separate and may permit some assets to be excluded from the terms of a settlement. As long as certain legal conditions were met, these contracts or agreements would be binding on a couple at the time of divorce and would not be scrutinised by a Judge as to whether or not they were fair.
Simon Hughes, the Justice Minister, stated:
“The Government is committed to improving the family justice system so divorcing couples can achieve the best possible outcomes for themselves and their families, using the courts only where necessary”.
In line with this, the Government is already introducing a large number of changes in the Family Courts in April 2014 with regard to matters involving children and the arrangements made for them following parental separation.
If you are experiencing difficulties in respect of the breakdown of your marriage or relationship, please do not hesitate to contact the Family Department at Emery Johnson Astills for expert legal advice on 0116 255 4855.