THE BLOG

Contracts, Calculators and Common Sense: The Law Commission and the Future of Divorce

28/02/2014 12:37 GMT | Updated 29/04/2014 10:59 BST

The breakdown of any romantic relationship is seldom free from emotion. When that relationship is a legal partnership, such as marriage, the need to factor finance and possible family into the equation can make for an incredibly fraught time for all concerned.

That is why I believe that recommendations just published by the Law Commission are so welcome.

The Commission has issued a set of recommendations following an exhaustive five-year investigation into ways by which the process of divorce can be made less complicated and less stressful.

The most eye-catching of all the proposals is that marital contracts be given the full weight of law in the form of what it calls 'qualifying nuptial agreements'. As with existing pre-nuptial and post-nuptial agreements, they would provide a structure for determining who gets what when a marriage collapses. The significant difference however is that they will be binding.

Whilst such a move was anticipated by many, the Commission's endorsement is a significant advance.

Pre- and post-nups have generally carried greater weight in divorces since a landmark Supreme Court ruling in October 2010 in the case of a German heiress, Katrin Radmacher.

Her husband, Nicolas Granatino, unsuccessfully tried to set aside a pre-nup which they had signed before marrying in which he agreed not to make a claim on her wealth.

Having handled countless such documents with my colleagues, I am well aware of how couples worth considerably less than Ms Radmacher have found them to be of benefit in providing a means of calmly dividing their assets should their marriage not last the course.

Even though the prospect of greater status for these agreements has attracted the headlines, I feel that an equally important element of the Law Commission's announcement was to do with spousal maintenance.

In more than 20 years as a divorce lawyer, I have found no part of the divorce process as likely to generate friction between separating spouses as maintenance.

The Law Commission is suggesting that we borrow from the experience of Canada, which uses a formula based on the length of a couple's relationship and their incomes to arrive at a starting point for the amount of maintenance and for how long it should be paid.

Although the idea has already been described as nothing short of a "revolution" compared to what is currently in place, it is not an entirely alien concept.

In fact, such a process would be broadly similar to once which has been used in this country to calculate child maintenance for the last two decades.

Of course, there has been much debate about the effectiveness of the Child Support Agency (CSA) in collecting the sums which the formula has determined. However, the method of calculation takes the heat out of discussions between parents.

The formula is applied and then agreed.

Adopting the same approach for spousal maintenance is an excellent idea, in my opinion, and a logical step.

It reduces the scope for disputes between separating spouses and means that far more couples might be able to resolve their differences without the need to go to court and with minimal input from lawyers.

Having made such a strong and positive contribution, the Commission must now wait - along with couples and divorce lawyers like myself - to see if the Government accepts the recommendations and pushes them through Parliament and onto the statute book.

Were it not to do so, I think it would represent something of a missed opportunity to make the unhappy business of divorce less upsetting than it can be at the present.