Does a magic formula for spousal support exist?

11 December 2012

Last week saw a gathering of solicitors, barristers and judges who discussed the Law Commission's consultation on non-matrimonial property and needs, or, in effect, the reform of the current law on financial relief for divorcing couples. Increasingly, the English approach has been criticised as being too uncertain and resulting in lengthy court disputes with the inevitable impact on legal costs. Adding to that, the forthcoming removal of legal aid to thousands (coming into effect in April 2013) and the inevitable increase in self-represented litigants, the speakers talked of the need for greater certainty and how this could be provided.

In the search for an improved approach to finance on divorce, the Law Commission has inevitably been looking at the family justice systems and practices in other countries.  Professor Carol Rogerson was the main speaker at the Symposium, who described how guidelines for spousal maintenance had been developed in Canada very successfully.  With the assistance of bespoke software, guidelines had been in place, dealing the level of spousal maintenance (and the length of any term) with a range of outcomes depending on whether there were children, the length of marriage etc. Upper and lower limits for maintenance settlements are set. While not a mandatory formula (like the UK’s child support regime), the Professor talked of how the use of spousal maintenance guidelines had assisted family lawyers in advising their clients and the judges in ensuring a more consistent approach. And, most importantly, the 'formula' had helped to manage clients' expectations and reduce the ambit of the dispute.

Would such an approach take favour in England? There's clearly an appetite for anything that will reduce uncertainty, provided that judges aren't straight-jacketed and can retain a level of discretion, which is considered one of the benefits of divorce laws. On a strict application of the Canadian guidelines, Mrs McFarlane would not have been awarded the generous lifetime she did in the well-known Supreme Court case.

The Law Commission's consultation ends today, 11 December, and we await its outcome with interest.

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