Tuesday, 11 December 2012
The dawning of the cookie monster?
The possibility of using a formula to divide assets on divorce is one option being considered by the Law Commission ahead of today's closure of their two-month divorce law consultation.
The sums which separating spouses receive would be based on a mathematical formula considering factors such as the length of the marriage and number of children.
Critics of the system, which was introduced in Canada in 2008, claim that it leads to “cookie cutter” justice in which the size of divorce settlements becomes too fixed, rather than decided on the individual factors which arise on the breakdown of a marriage.
The aim would be to ensure greater consistency and certainty. The Law Commission also believes the reform could reduce unrealistic expectations and claims, therefore minimising conflict and the costs of divorce.
The idea of applying formulae to Family law is not necessarily new. The Child Support Agency introduced a formula which has been seen to work and has even reduced one possible source of tension in divorce proceedings. The ruling in White v White in 2000 was also notable because lawyers assumed it provided a straightforward formula for the division of a married couple's joint assets, however the judgement has been debated over the intervening dozen years so that the situation has ended up more complicated.
Removing family lawyers' discretion would amount to a significant shift in the resolution of financial matters on divorce. Family courts have been used to very broad discretionary powers, much more than in other countries' legal systems. For parliament to remove that and insist on a more rigid formula being used for the division of assets would constitute something of a u-turn. Such a system would maybe stand a greater chance of working by promoting certainty, but would judges still attempt to find some discretionary space within it?
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Claire Reid, Senior Associate