Vardags Family Law Essay competition 2024/25 | Sofie Schuster

Bringing Divorce Law into the 21st Century: Reforming England and Wales’ Legal Framework

Author: Sofie Schuster - King’s College London, University of London

Criticised by the Law Commission as ‘inconsistent with the rule of law’ (1) and ‘promoting dispute,’ (2) and condemned by leading legal figures as ‘antediluvian’ (3) and ‘damaging,’ (4) the divorce laws of England and Wales remain under relentless scrutiny. The discretionary nature of financial remedies, coupled with the lack of clear and accessible guidelines about what couples can expect to happen to their finances upon divorce, continue to frustrate both legal practitioners and couples, fueling ongoing demands for reform. The 2010 landmark Supreme Court decision in Radmacher v Granatino (5) (Radmacher), offered a glimmer of hope by making prenuptial agreements enforceable in court. Praised for breaking new ground in family law and paving the way for modern legal thinking, Ayesha Vardag, who represented the wife, delivered the triumphant assertion: ‘from today, grown-ups can agree in the best of times what will happen in the worst of times’, (6) encapsulating the profound shift the case represented. Yet, even this watershed moment fell short of granting nuptial agreements full binding force as the shift in judicial attitudes has not yet been reflected in legislation. In light of this, the question arises: Why is the outcry against the current legal framework for financial remedies so vocal, and how might the recent release of the Law Commission’s much-anticipated scoping report finally provide the legal certainty that couples in England and Wales deserve? Among the four proposed models of reform, this analysis will focus on the “codification” model and assess whether merely codifying existing case law would truly offer a satisfactory solution.

England and Wales: Lagging behind European counterparts

To grasp the magnitude of England and Wales’ tardiness, consider this: Germany, the country where the Radmacher agreement was drafted, recognised nuptial agreements as binding as early as the 1900s and has a statutory default regime in place. (7) Similarly, France and Italy have codified matrimonial property regimes that establish clear rules for property division upon divorce. (8) In contrast, England and Wales lack statutory provisions to represent the legal framework developed through case law. Instead, courts rely on the discretionary application of section 25 of the Matrimonial Causes Act 1973 (MCA 1973) when addressing financial remedies. Because the judiciary isn’t instilled with the power to simply create a new law to ‘fill a gap,’ (9) in the past, the only means was to re-interpret section 25 based on the ever-evolving understanding of the law to ensure a fair outcome for all parties. This reliance on case law has led to what the Law Commission aptly describes as ‘nebulous principles.’ (10) Judgments in these cases are highly fact-specific, judge-made, and offer minimal guidance on how financial arrangements, particularly the division of assets, will be determined in future cases.

The problem with these nebulous principles goes deeper than their ambiguity. Most of these principles arise from higher court judgments, particularly those of the Supreme Court, which predominantly address high-net-worth financial disputes, thereby marginalising most less wealthy individuals. This disparity exists because financial remedy proceedings often involve substantial attorney and procedural costs; costs that have drawn heavy criticism from the courts themselves. Indeed, litigation in such cases has been likened to being ‘shipwrecked on the rocks of disproportionate and excessive costs.’ (11) A 2016 Grant Thornton matrimonial survey underscores this issue, revealing that the average total assets involved in divorce proceedings typically range between £2-4 million. (12) Consequently, the case law and principles derived from these ‘big money’ (13) disputes fail to reflect the reality of the average divorce case, leaving significant gaps in guidance for addressing the limitations in more typical maintenance disputes.

The Law Commission’s proposed models for reform

So, what has the Law Commission mapped out over the course of three years? In its December 2024 report, the Law Commission outlined four reform models, ranging from a minimalistic codification of existing case law to a comprehensive overhaul introducing a statutory default regime. Each successive model proposes a greater level of reform, with the fourth representing the most radical departure from the status quo:

• Codification: Translates established case law principles into statutory form, ensuring accessibility but offering minimal substantive change,
• Codification-Plus: Codifies existing law while introducing policy considerations to enhance fairness, retaining judicial flexibility but imposing limitations in key areas,
• Guided Discretion: Establishes statutory principles to direct judicial decision-making, providing more predictability while retaining case-specific flexibility,
• Default Regime: Introduces a statutory matrimonial property framework, significantly reducing judicial discretion and ensuring the highest level of certainty. (14)

Is mere codification of the current case law enough?

Given the undeniable need for change, reform is a demanding task. With these laws ultimately impacting individuals at their most vulnerable moments, any government-led reform must address past criticisms and offer a solution that satisfies the widest possible range of stakeholders. However, when examining the first and “least intrusive” proposed model, codifying existing principles from case law into statute, the question arises: does this approach justify the considerable effort of reform? Does it not risk importing the pre-existing uncertainties of case law directly into legislation? Is it truly worth years of reform campaigns, years of research, and the substantial legislative effort required? It’s difficult not to wonder whether such efforts might merely entrench the very flaws that have long been criticised, turning them into permanent features of the statutory framework.

The “codification” model would require defining principles such as fairness, needs, and sharing more precisely, either within section 25 or a new statute. (15) The terminology underpinning these principles has historically relied heavily on judicial discretion, making it a challenge to translate them into coherent statutory language. As Lord Nicholls famously said in White v White16, “fairness, like beauty, lies in the eye of the beholder.” (17) This subjectivity, alongside the difficulty of applying fairness consistently to circumstance-dependent cases, has allowed biases, such as favoring breadwinners over homemakers, to persist. (18) Codifying these principles without careful consideration, therefore, risks cementing inconsistencies into law, undermining the goal of making the law more accessible, clear, and predictable.

The Scoping Report itself illustrates the relevant difficulties. For example, one suggestion from the Marriage Foundation proposes the following codification of fairness:

The objective of the court shall be to achieve a fair overall outcome as between the parties such that each is enabled to move as soon as reasonably possible to financial independence from the other. (19)

While seemingly straightforward, this definition fails to position “needs” as central to fairness, a flaw noted by the Law Commission themselves. This illustrates the challenges of formulating suitable definitions. The “codification-plus” model, by contrast, offers an opportunity to redefine core principles, ensuring that the law evolves beyond its current limitations. This model allows for policy considerations to be factored in, making it more adaptable. After all, for reform to remain worthwhile, it must go beyond merely memorialising case law. This is a “choose-once, choose-wisely” moment: any reform will lay the foundation upon which the law will evolve for years, if not decades, to come. It must address the shortcomings embedded within the current system and offer meaningful improvements. Otherwise, the government risks expending substantial effort on a project that merely translates uncertainties into statute. The “codification” model therefore fails to make the law ‘intelligible, clear, and predictable,’ (20) failing to address the issues that originally prompted calls for reform, most notably that the current system is incompatible with the Rule of Law.

Another key aspect of the calls for reform in family law revolves around the introduction of binding nuptial agreements. The proposed “codification” model again falls short of meeting these demands. Since the landmark Radmacher decision, courts have generally upheld nuptial agreements that are properly executed, unless there is a compelling reason not to, such as the agreement failing to meet one of the fairness strands like meeting one party’s needs. (21) “Codification” would merely enshrine this discretionary approach in statute, preserving the courts’ ability to override agreements they deem unfair. As a result, simple codification would not, therefore, lead to truly binding nuptial agreements, as the courts’ jurisdiction to deviate from such agreements would remain intact. (22)

Instead, introducing binding nuptial agreements would require a deliberate policy shift, along with the enactment of additional statutory provisions, which would be possible, for example, under the “codification-plus” model. This approach could both solidify the legal foundation of nuptial agreements and impose clear conditions to ensure their validity. The current lack of clarity in the legal framework contributes to London’s reputation as the ‘divorce capital of the world,’ (23) where judicial discretion often results in generous financial awards and unclear form requirements. Reform could address these inconsistencies by introducing clear form requirements and reducing reliance on discretionary case law.

The lack of consistent regulation surrounding nuptial agreements is evident in several ways, one of which is the time requirement; specifically, how long before the wedding a prenuptial agreement can be made. For example, the Law Commission suggested a 21-day time limit in 1998, (24) while the proposed Nuptial Agreement Bill advocated for a 28-day (25) limit. This lack of consensus underscores the unstructured nature of the current law. Cases like Versteegh v Versteegh (26) where prenuptial agreements were signed as late as one day before the wedding, further highlight the issue, raising concerns about undue influence and fairness. For legal practitioners, these discretionary rules create challenges, and for individuals navigating this complex landscape without professional guidance, the system becomes nearly impenetrable. While “codification” may prove insufficient the remaining three models could open binding nuptial agreements to a broader group of people and provide a satisfactory answer to the decade long calls for general reform. (27)

Outlook

The divorce laws of England and Wales are at a crossroads. While Radmacher marked a significant shift, its impact has been limited due to the absence of legislative reform. The current system’s reliance on discretionary case law has rendered it inaccessible, costly, and inequitable for many. The Law Commission’s proposed models offer a range of solutions, from minimal “codification” to transformative “default regimes,” with each model increasing the level of legal certainty. However, it is crucial to acknowledge that the “codification” model, while a step forward, may not be satisfactory. By merely translating existing case law into statute, it risks cementing the ambiguities and uncertainties that have long plagued the system, without addressing the underlying issues that led to calls for reform in the first place. If the government chooses this approach, it could fall short of achieving the meaningful change needed to ensure fairness and clarity for divorcing couples. In any case, whether the government adopts one of the proposed models or a version of it, we may have to wait some time before we see the legislative changes come into effect. Nevertheless, the reform process presents a crucial opportunity. If executed properly, it could finally address the long-standing criticisms and bring the divorce laws of England and Wales into alignment with the rule of law, putting to rest accusations of being outdated and unfair once and for all.

footnotes

(1) Alistair Gray, ‘Divorce law in England and Wales ‘promotes dispute’, report finds’ Financial Times (London, 18 December 2024).

(2) Ibid.

(3) Frances Gibb, ‘Family Matters: Urgent call for new divorce laws as judges demand overhaul of ‘corrosive’ system’ The Times (17 November 2017).

(4) Ibid.

(5) Radmacher v Granatino [2010] UKSC 42.

(6) ‘Judges back pre-nuptial agreements’ Independent (London, 02 July 2009).

(7) BGB § 1432 (1st edn 1896).

(8) Jane Croft, ‘Law Commission recommends allowing prenuptial agreements’ Financial Times (London, 27 February 2014).

(9) Helen Newman, ‘The increasing importance of nuptial agreements in light of recent cases and statutory developments’ (2017) 3(1) Fields: journal of Huddersfield student research accessed 26 January 2025.

(10) Law Commission, Financial remedies on divorce and dissolution: A scoping report (Law Com No 417, 2024) para 3.29.

(11) David Hodson, ‘The Scandal of Costs in Financial Remedy Proceedings in English Family Law’ (2022) 3 FRJ 186.

(12) ‘Matrimonial Survey 2017’ (Grant Thornton, 2016) accessed 26 January 2025.

(13) Lucy Warwick-Ching, ‘London’s reputation as divorce capital could be tested by legal shake-up’ Financial Times (28 August 2023).

(14) Law Commission, Financial remedies on divorce and dissolution: Summary of Scoping Report (Law Com No 417, 2024) [12].

(15) Law Commission (n 10) 1.71.

(16) White v White [2001] 1 AC 596.

(17) Supra [1].

(18) Croft (n 8).

(19) Law Commission (n 10) 4.32.

(20) Tom Bingham, ‘Rule of Law’ [2007] 66 Camb. Law J. 67.

(21) Law Commission (n 10) 4.44.

(22) Law Commission (n 10) 4.46.

(23) Supra [1].

(24) Home Office, Supporting Families: A Consultation Document (Cm 3922, 1998) [4.23].

(25) Law Commission (n 10) 7.13.

(26) Versteegh v Versteegh [2018] 2 FLR 1417.

(27) Catherine Baksi, ‘Pre-nups should be legally binding, says Law Commission’ The Law Society Gazette (27 February 2014) accessed 26 January 2024.

Bibliography

Cases

Radmacher v Granatino [2010] UKSC 42.

White v White [2001] 1 AC 596.

Versteegh v Versteegh [2018] 2 FLR 1417.

Legislation

BGB § 1432 (1st edn 1896).

Section 25 Matrimonial Causes Act 1973.

Articles

Bingham T, ‘Rule of Law’ [2007] 66 Camb. Law J. 67.

Croft J, ‘Law Commission recommends allowing prenuptial agreements’ Financial Times (London, 27 February 2014).

Gibb F, ‘Family Matters: Urgent call for new divorce laws as judges demand overhaul of ‘corrosive’ system’ The Times (17 November 2017).

Gray A, ‘Divorce law in England and Wales ‘promotes dispute’, report finds’ Financial Times (London, 18 December 2024).

Hodson D, ‘The Scandal of Costs in Financial Remedy Proceedings in English Family Law’ (2022) 3 FRJ 186.

‘Judges back pre-nuptial agreements’ Independent (London, 02 July 2009).

Newman H, ‘The increasing importance of nuptial agreements in light of recent cases and statutory developments’ (2017) 3(1) Fields: journal of Huddersfield student research accessed 26 January 2025.

Warwick-Ching L, ‘London’s reputation as divorce capital could be tested by legal shake-up’ Financial Times (28 August 2023).

Official Publications

Home Office, Supporting Families: A Consultation Document (Cm 3922, 1998)

Law Commission, Financial remedies on divorce and dissolution: A scoping report (Law Com No 417, 2024).

Law Commission, Financial remedies on divorce and dissolution: Summary of Scoping Report (Law Com No 417, 2024)

Websites

Baksi, C ‘Pre-nups should be legally binding, says Law Commission’ The Law Society Gazette (27 February 2014) accessed 26 January 2024.

‘Matrimonial Survey 2017’ (Grant Thornton, 2016) accessed 26 January 2025.