Confusion, courts & the search for certainty (but at what cost?)
Written by
To quote Douglas Adams, and most people trying to make their way in the world in 2025, "We are living in strange times". But at a time when we have more choices – in work, when and how we start families and with whom, where we live and so on – than perhaps ever before, shouldn’t things feel a little easier? In the microcosm of divorce law, the complexity of modern society may have left the law behind, with those who rely on it adrift, searching for answers.
Calling for reform
The Law Commission has carried out a detailed analysis of the current laws on financial remedies on divorce to look at whether there are problems with the current framework and how it might be improved.
The headline criticisms of the current system are that it is both unclear and inconsistent – precisely the opposite of what our laws are intended to be. Those in favour of reform claim the wide discretion afforded to judges encourages disputes and disagreement rather than helping people reach an agreement.
Their view is that a more formulaic approach, with short, fixed terms for spousal maintenance, for example, would lead to greater clarity, fairness and more couples would access justice. For context, in 2023, only 40 percent made financial applications to the Court.
Presently, the Court will consider a range of statutory factors including income, earning capacity, property and financial resources; the parties’ needs and those of any children; the standard of living enjoyed by the family; the parties’ ages and the duration of the marriage; any physical or mental disability; and the contributions – whether financial or to the welfare of the family.
This is supplemented by the principles of needs, sharing and compensation developed in case law. Many of the reported cases bear no relevance to most people – assessments of “needs” in the context of cases involving billions of pounds, can appear out of touch.
Modern families: a shifting landscape
To add further complexity, dual income families mean that traditional gender roles are becoming blurred, with parents being breadwinners AND primary carers, in equal measure. The ONS data in relation to the percentage of people in employment by parental status shows the steady increase in dual income families. In 1996, nearly 67 percent of married/cohabiting mothers with dependent children were employed, as compared to 87 percent of fathers in the same category.
Jump to September 2024 and the percentages rise to 80 percent mothers and 93 percent fathers. Notwithstanding this, the “gender pay gap” is still widely reported upon and the costs of childcare provoke widely heard anecdotes that “it is like having a second mortgage”. More often than not, it is the mother who steps back from a career and can then be vulnerable post-divorce when expected to return to work.
Added to this, as people increasingly have children older, perhaps preferring to establish careers first, there are reports of a new generation of “sandwich carers” – those caring for both their ageing parents and their young children, with the costs of both mounting.
“The Great Wealth Transfer” is being widely reported – it being predicted that £5.5 trillion will pass to younger generations by 2050. This has resulted in commentary that we are returning to a Jane Austen-style society, with high property prices meaning one’s (financial) success in life is more likely to be linked to “marrying well” than securing a job. The rise of the notion of the “trad wife” – a return to the domestic, traditional gender roles, could be a sign of a wish to revert to clarity and give up on the idea of trying to manage both career and family.
A new chapter for divorce?
In the context of such a confused and various society, would the laws of England and Wales support a formulaic, “one size fits all” set-up? The State does not provide the same provision as jurisdictions in which these systems are established.
The Law Commission report highlights the contrasting provision in Sweden, where there is a “family friendly” society with employment policies supporting gender equality, shared parental leave and affordable childcare for all – the average costs of a full-time nursery place is charged at three percent gross salary for the first child; two percent for the second; one percent for the third; and the fourth being free.
The concern a single framework applied to all, in circumstances where there are not the resources to fill in the gaps, will leave some in financial distress. It might, therefore, be said to be better to have to work hard to find the right answer than to take an easier route to an unfair one.
This article was first published by eprivateclient in March 2025.
