Impending Review Of The Matrimonial Causes Act 1973: Can We Expect Changes To Financial Remedies In Divorce?

The Matrimonial Causes Act 1973 (MCA 1973) governs all aspects in respect of matrimonial proceedings, save for those which have now been replaced regarding divorce applications themselves (now dealt with under the Divorce, Dissolution and Separation Act 2020). The legislation particularly deals with the matter of the matrimonial finances, and types of orders the court can make to settle the finances of a divorcing couple.

The MCA 1973 is now 50 years old as of 2023, and many family practitioners have suggested that it is time for the law to be reviewed, and possibly even changed, in light of changing times.

Will the MCA 1973 change?

On 8 March 2023, a debate in the House of Lords took place, which questioned whether the government was due to provide a review on matrimonial finances. It has been confirmed that the government is working with the Law Commission (a statutory body that reviews law and recommends changes when necessary) to consider whether the MCA 1973 should be updated.

The reasons for changes being demanded are due to the fact that a lot of other jurisdictions, such as Australia, are cited as having much more up-to-date provisions, and that our own jurisdiction is ‘lagging behind’. For instance, it is only since the Supreme Court judgment of Radmacher v Granatino in 2010 that pre-nuptial agreements have been recognised in English and Welsh law, but it is still a long way to go before such recognition will be in formal legislation.

Criticisms of the existing provisions

Under the current provisions of the MCA 1973, there are ‘section 25 factors’, appropriately named for the section of the legislation, that confirms the various factors that judges need to consider when dealing with the matrimonial finances. This is a compulsory exercise judges need to undertake, whether the case is agreed upon or contested. However, a criticism that has arisen is that judges have a wide discretion when it comes to the section 25 factors, which has led to a lot of case law with differing views from judges. This can make it trickier in some cases for solicitors to advise their clients as to what outcome to expect when considering the division of the matrimonial pot.

Proposed changes to take time

It was confirmed in the House of Lords that the review by the Law Commission would cover the consideration of what the law says now, and what changes could be made to update it. It was also confirmed that the review would not, however, consider cohabitation and the idea of common-law marriage (being that common-law marriage is not a valid legal status and does not exist in English and Welsh law).

Whilst the review looks promising, this report will not be produced any time soon. The usual timescale for a Law Commission report to be produced is at least two years. Therefore, divorces will in the meantime continue to take place under the existing law. Any changes proposed by the Law Commission would need to be proposed as a Bill through Parliament once the Commission has published the report, and therefore it may well be a few years before we see any real changes to financial remedy in divorce. It is, however, promising that it is being recognised that this is an area of law that requires review and reform to keep up with our changing times.