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LC Consultation on Matrimonial Property, Needs

  • rubytuesday
  • rubytuesday's Avatar Posted by
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17 Sep 12 #356284 by rubytuesday
Topic started by rubytuesday
The Law Commission are holding a supplementary consultation on needs and non-matrimonial property.

The review is looking at two specific aspects of the law relating to financial provision on divorce:

to what extent one spouse should be required to meet the other’s financial needs, and what exactly is meant by needs; and

what happens to property that one of the partners owned before the relationship or acquired during the course of it.

Full details can be found here , there is a pod-cast, various summaries and further information available.

Wikivorce hope to submit a response, based on the contributions of members - its a fairly "meaty" consultation, and one that offers the opportunity for discussion and debate.

The questions asked in the 14 page consultation are:

Do consultees agree with our central argument that the current law requires
reform to ensure that the payment of spousal support is founded on a principled basis that explains what has to be paid by way of spousal support, and for how long?
(Supplementary Consultation Paper, Part 4, paragraph 4.113)

Should spousal support:

(1) be restricted to the compensation of loss caused by the relationship; or
(2) seek to unravel the “merger over time” by redressing the disparity in lifestyle caused by the divorce or dissolution?
Supplementary Consultation Paper, Part 4, paragraph 4.114

In answering the question at paragraph 7.3 above it would be helpful to hear consultees’ views on the relevance or otherwise of:

(1) the length of the marriage;

(2) the marital standard of living;

(3) the way that joint responsibilities (for example, provision of childcare or
care for an elderly parent) have been shared during the marriage and
will be shared after its ending; and
(4) the occupation of the former matrimonial home following divorce.

Supplementary Consultation Paper, Part 4, paragraph 4.115

If consultees favour a principled reform of spousal support, should it take the form of:
(1) a reformed discretionary approach; or
(2) a formulaic calculation?

Part 4, paragraph 4.116

To what extent do consultees think that either a reformed discretionary basis or a
formula should embody incentives towards independence by placing limits on the extent of support that might be given?

Part 4, paragraph 4.117

What preliminary work would be needed to research and pilot a new approach?
In particular:

(1) who should do that work;

(2) what methodology should be adopted;

(3) what sort of timescale and investment would be required?

Part 4, paragraph 4.118

Our case studies: the basis of support
We are asking consultees to choose between two different models of support; one addresses the losses caused by the relationship, whereas the other is neutral about causation but offers support to enable the spouses – in practice, the economically weaker party – to adjust to independence.
Case study two highlights the contrast here. The current law appears to give Michael an entitlement to continue living at the marital standard of living, for an uncertain period. If spousal support is based strictly on compensation, Michael gets very little, because he does not appear to have lost out as a result of the marriage. A transition approach (or “unravelling the merger over time”, as we put it earlier) is likely to give him a higher award, evening out the disparity in the two lifestyles for a period proportionate to the length of the marriage.
Put very practically:
A. Should Michael be entitled:
- to live at the same standard as he would have lived during the marriage, and if so for how long?
- to as much as he needs to relocate and to start again as a single person?
- to a more graduated transition to independence, with some income contributions from Sophia and, if so, for how long?
B. Should that entitlement be calculated before the capital value of the couple’s home is shared, or subtracted from that value before sharing what is left?
Consultees are also invited to consider case study three (Pat and Chris), and to tell us:
C. To what extent does Chris have a responsibility to provide for Pat’s care after the ending of the civil partnership?

Our case studies: a formula or discretion?
D. Consultees are asked to look again at our three case studies. We have highlighted the difficulties in calculating levels of support on any basis; even if you feel that Sarah should be compensated for her past and ongoing losses as a result of the marriage, you may also feel that it is very difficult to calculate them. Imagine that Sarah and Ian – who cannot afford legal advice – could look up a calculation which gave a figure, or a range of values, for Sarah’s claim (as, of course, they can for child support). Would they find that helpful because it gave them an answer? Or frustrating because that answer cannot be flexible or responsive to their individual circumstances or preferences?
E. We have also asked about incentives for independence. Should there be rules that place a limit on the length of time for which Sarah can be supported by Ian and, if so, how strict should they be? Do you feel the same way about Michael, after a childless marriage?

Our case studies: the factors that affect levels of support
We ask consultees to focus here on factors that might make a difference to levels of support. In particular:
F. Whatever your view of the level of support to which Sarah, Michael and Pat are entitled, how does your view change – if at all – if in each case the length of the marriage is changed. In particular, suppose Sarah and Ian had been married for twelve years not six? Sophia and Michael for ten years not six? By contrast, how would your view change, if at all, if Pat and Chris had been in a civil partnership for two years rather than eight?
G. We ask about the marital standard of living: should Sarah, Michael or Pat be entitled to carry on living at that standard? If so, why?
H. How important are continuing responsibilities? Do you agree that this should make a difference to levels of support in case study one, where Sarah has ongoing care of the children?
I. Should Sarah be entitled to carry on living in the family home after divorce? Should Sophia? Or Ian? Or Michael? If so, in any case, why?

Consultees are asked to give us their views about the following possibilities for
statutory and non-statutory reform.

(1) Statutory provision to the effect that the courts, in making provision for
spousal need, must aim to ensure that a payee spouse is enabled to
become independent within a reasonable period, while bearing in mind
also that independence is unlikely to be practicable until the children of
the marriage or civil partnership finish their education.

(2) An authoritative source of guidance for the courts and for members of the public about:

(a) the considerations involved in an assessment of need (see Supplementary Consultation Paper, Part 5, paragraphs 5.43 to 5.48);

(b) the priority to be afforded to different elements of need (see Supplementary Consultation Paper, Part 5, paragraphs 5.49 to 5.50).

(3) Provision about the following either by way of statutory amendment or in
the form of authoritative guidance:

(a) the time within which independence is to be expected (see Supplementary Consultation Paper, Part 5, paragraphs 5.33 to 5.39);

(b) the normal form of orders for periodical payments (term orders or joint lives) (see Supplementary Consultation Paper, Part 5, paragraph 5.33); and

(c) the financial arrangements to be made after short childless marriages (see Supplementary Consultation Paper, Part 5, paragraphs 5.38 to 5.39).

(4) Who should provide that guidance? Would it be appropriate for it to be
produced by the Family Justice Council in the form of Practice

(5) Publication of that guidance on the information hub to be provided in
response to the Family Justice Review.
, Part 5, paragraph 5.62

Consultees are asked to tell us about any other reform measures that would
make the law relating to needs more consistent and accessible, short of the
fundamental and principled reform Envisaged in Part 4.Part 5, paragraph 5.63

We invite consultees’ views as to whether, as well as stating that it shall not be
possible to contract out of provision for needs by means of a qualifying nuptial
agreement, statute should also specify the level of needs for that purpose, Part 5, paragraph 5.70

We provisionally propose that non-matrimonial property, defined as property held in the sole name of one party to the marriage or civil partnership and:

(1) received as a gift or inheritance; or

(2) acquired before the marriage or civil partnership took place

should no longer be subject to the sharing principle on divorce or dissolution, save where it is required to meet the other party’s needs.

Do consultees agree?
Part 6, paragraph 6.41

We ask for consultees’ views on whether the family home should be excluded
from the definition of non-matrimonial property proposed abovePart 6, paragraph 6.50

We ask for consultees’ views on whether property acquired by one party during
cohabitation with the other party should be excluded from the definition proposed above Part 6, paragraph 6.59

We provisionally propose that non-matrimonial property should not lose its status as such merely by virtue of having been used by the family. Do consultees agree? Part 6, paragraph 6.77

We provisionally propose that where non-matrimonial property has been sold and substitute property bought, that property should be matrimonial property if it has been bought for use by the family, save where the substitute property is of the same kind as the property sold.

Do consultees agree? Part 6, paragraph 6.87

We provisionally propose that where non-matrimonial property has been sold and the proceeds invested in matrimonial property, the property (following that investment) should be matrimonial property.

Do consultees agree? , Part 6, paragraph 6.88

We ask consultees to tell us whether they think that it is possible to devise rules – or a guided discretion – for the treatment of cases where non-matrimonial property has grown due to the investment of one or both the spouses? What values should be expressed in those rules? Part 6, paragraph 6.100

End of consultation.

  • rubytuesday
  • rubytuesday's Avatar Posted by
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  • Moderator
21 Sep 12 #357073 by rubytuesday
Reply from rubytuesday
Anyone? :(

  • soulruler
  • soulruler's Avatar
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  • Platinum Member
21 Sep 12 #357075 by soulruler
Reply from soulruler
Well swallow many legal dictionaries and loads of books on Law and councelling and stress and you might come up with an answer - that looks incredibly complicated to me I thought the Law Commission was about making Law less complicated to understand.:(

  • Big_Jim
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  • Premium Member
11 Feb 14 #421951 by Big_Jim
Reply from Big_Jim
The report into the findings of this consulation are due to be published two weeks on Thursday (27 February).

I''m surprised there appears to be little discussion not only on here, but generally, about the consultation and the expected outcomes and impacts.

From my point of view, I am really looking forward to reading this.

My stbx has higher income than me but still expects the moon.

Will this consultation help?

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11

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