The Law Commission announcement

(1) On 4 April 2023 the Law Commission announced a ‘review of the laws which determine how finances are divided among couples after divorce’,1 targeted at producing a ‘scoping report’ in September 2024.

(2) The announcement carried the following explanation of the task and the likely timetable:

‘Half a century after the passage of the 1973 Act, the Government has asked the Law Commission to review whether the current law is working effectively, and delivering fair and consistent outcomes for divorcing couples.

In its review, the Commission will carry out a detailed analysis of the current laws on financial remedies, to determine whether there are problems with the current framework which require law reform, and what the options for reform might look like.

The Law Commission’s work will consider the financial orders made by courts in England and Wales, as well as the law in other countries. It will conclude by publishing a scoping report in September 2024, which could provide the basis for a full review and future financial remedies reform.’

(3) Professor Nicholas Hopkins, Law Commissioner for Property, Family and Trust Law, added:

‘Fifty years since the current law was put in place, it’s essential that we look at whether it is working effectively for all parties. This is a hugely important area, affecting separating couples and their children at an incredibly stressful time of their lives. It is essential that any reform in this area is very carefully considered.’

(4) Lord Bellamy KC, Parliamentary Under Secretary of State in the Ministry of Justice, the minister with specific responsibility for family law, further explained the context of the review thus:

‘The breakdown of a marriage can be an incredibly difficult time but it is in everyone’s interests to remove acrimony from the process wherever possible. This review will address whether our laws are still working in the fairest way to support separating couples and avoid unnecessary conflict when it comes to dividing their finances. This important step builds on our landmark no-fault divorce reforms which ended the blame game, helping protect families and children from the stress of separation.’

(5) The documentation supporting the announcement included more information as to the issues particularly in focus:

‘the laws which govern the use of financial remedy orders are now several decades old, dating back to the Matrimonial Causes Act 1973 … The project will consider the financial orders made by courts in England and Wales, as well as the law in other countries … As part of its analysis of existing law, the Law Commission will consider whether there is potential for reform in specific areas such as:

• The discretionary powers given to judges over the division of financial assets, and whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples.
• Whether there should be wider powers given to the courts to make orders for children over the age of eighteen.
• How maintenance payments for an ex-spouse or civil partner should work.
• What consideration the courts should give to the behaviour of separating parties when making financial remedy orders.
• Orders relating to pensions and whether they are overlooked when dividing the divorcing parties’ assets.
• The factors judges must consider when deciding which, if any, financial remedy orders to make.’

(6) The terms of reference for the project provide a little more detail for this focus:

‘The Law Commission will consider specifically (but not be limited to considering) whether there is scope for reform in relation to the following areas:

(1) The discretionary basis of the current law, and whether it allows for sufficient certainty as to legal outcomes;

(2) Whether there may be ways to structure the discretionary basis of the current law with a clear set of underpinning principles, in order to create more certainty as to outcomes;

(3) Whether there should be wider powers for the courts to make orders in respect of children of the family who have already attained the age of eighteen;

(4) The operation of “conduct” as a factor to which the court must have particular regard when deciding to make financial remedies orders;

(5) The treatment of pensions on the division of parties’ assets on divorce;

(6) Potential maximum periods for spousal periodical payments orders; and

(7) The principles underlying s.25A of the Matrimonial Causes Act 1973.’

The terms of reference explain that:

‘The review will proceed taking into account the following policy aspirations (insofar as is possible, accounting for potential tensions between the aspirations):

(1) The law relating to financial remedies should:

(a) provide fair outcomes;

(b) provide sufficiently certain outcomes;

(c) have regard to the position in which financially vulnerable parties might find themselves on divorce;

(d) be straightforward and easy for parties to a divorce or dissolution to understand, where possible equipping parties to reach agreement without the court’s assistance and without needing to expend large sums on legal fees;

(e) minimise risk of conflict between parties to a divorce or dissolution;

(f) apply effectively, including in relation to cases involving parties with limited financial means; and

(g) be capable of adapting over time to socio-economic changes.’

(7) The terms of reference make clear that the review will not consider:

‘(1) The law relating to child maintenance as governed by the Child Support Act 1991.

(2) The law relating to financial provision for children under Schedule 1 to the Children Act 1989.

(3) The law relating to the rights of cohabitants on relationship breakdown.

(4) The principle that parties may make an application for financial relief in England and Wales after an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984.

(5) The principle that the court may make financial remedies orders on a nullity of marriage order or nullity of civil partnership order, or on judicial separation order or separation order.

(6) The principle that the law on financial remedies on divorce will be replicated so as to apply in the same way in respect of dissolution of civil partnership.

(7) The principle that a former spouse who has not remarried may make an application for maintenance under the Inheritance (Provision for Family and Dependants) Act 1975.

(8) The law relating to the enforcement of financial remedies orders, including in relation to cross-border reciprocal enforcement’.

(8) It is important for me (in a personal capacity, and as a judge, and in so far as I represent the Financial Remedies Court (FRC)) to make absolutely clear that I welcome this Law Commission review and the opportunity to reflect in depth and meaningfully on how this area of the law, in which I have spent approaching 40 years practising as barrister and Judge, could be conducted in a way which works less adversarially and less expensively for those unfortunate enough to be going through the emotional minefield of a divorce. The purpose of this article is not to express any views on the merits of any changes which might emerge from this review, but to reflect on the types of issues which appear to be up for review, to discuss the context in which they have come to be reviewed and to suggest some linked areas which might helpfully form part of the discussion.

The vintage of the Matrimonial Causes Act 1973

(9) The steer given in the announcement is that the Matrimonial Causes Act 19732 is a creature from a different age and the time might be right for putting it out to grass. Hence the references to ‘Fifty years since the current law was put in place’ and ‘Half a century after the passage of the 1973 Act’. Of course this country was, in all sorts of ways of culture and mores, a very different place in 1973 than it is now, but any analysis of the 1973 Act needs also to recognise the radical changes in the way that judges have interpreted its meaning over that 50-year period. A judge in 2023 interpreting the words of the 1973 Act, s 25 is likely to be thinking very differently from a 1973 counterpart – even though the words themselves have hardly changed (and not at all since 1984).

(10) The great judge-made changes introduced by the House of Lords (Lord Nicholls taking the lead) in White v White [2000] UKHL 54 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 did not require any change to the words of the statute to drive them. Thus arrived the outlawing of discrimination between earner and home-maker and the equal sharing principle, also (much less often in practice) the compensation principle, though the reader will not find any of these words or concepts in the text of the 1973 Act itself. Likewise, cohabitation which ‘moves seamlessly … to marriage’ being added to the duration of the marriage itself as first proposed in GW v RW (Financial Provision: Departure from Equality) [2003] EWHC 611 (Fam) by Nicholas Mostyn QC (sitting as a Deputy High Court Judge) did not require any change to the statute but (said the judge) ‘the law in this area is not moribund but must move to reflect changing social values’. Likewise, the radical change in the treatment of agreements introduced by Radmacher v Granatino [2010] UKSC 42 did not involve any change of wording in the statute – nor, indeed, does the word ‘agreement’ appear in the Act. Likewise, recent case-law has significantly curbed the obligations against post-separation incomes by expressly declining to place a value on earning capacities (see Moylan LJ in Waggott v Waggott [2018] EWCA Civ 727) and curbing the use of joint lives spousal periodical payments orders, imposing a clear burden on the payee to establish a justification for anything other than a non-extendable term or the continuance of the order on a variation application (see Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183, Clarke v Clarke [2022] EWHC 2698 (Fam) and Cummings v Fawn [2023] EWHC 830 (Fam)). There have been many other less major changes in specific areas and Mostyn J has often busied himself over the last 15 years or more by writing influential judgments which modernise and almost codify the law in specific subject areas (his recent judgment in James v Seymour [2023] EWHC 844 (Fam), in which he introduces – for the ‘algebraically minded’ anyway – what he calls an ‘Adjusted Formula Methodology to give a Child Support Starting Point’ is a good example of this).

(11) Whilst elected politicians have largely left the field open to unelected judges (which could amount to a legitimate criticism of the process), it cannot be said that the law in this area has been left to ossify. Thus, it should follow that it will not be accurate or sufficient to criticise the provisions of the 1973 Act by reference to its vintage. If the operation of the modern law is to be criticised, it must be on its merits and the outcomes produced by its modern interpretation.

The interventions of Baroness Deech as a trigger to the review

(12) Perhaps the headline factors in this review – the investigation of ‘Whether there may be ways to structure the discretionary basis of the current law with a clear set of underpinning principles, in order to create more certainty as to outcomes’ and ‘Potential maximum periods for spousal periodical payments orders’ and ‘The principles underlying s.25A of the Matrimonial Causes Act 1973’ – all appear to arise directly from the work of Baroness Deech and her Divorce (Financial Provision) Bill. That this is so can be derived from the sequence of events in March 2020 as they resurfaced (post-COVID-19) in March 2023. In March 2020 Baroness Deech, supported by Baroness Shackleton, and with a clear eye on her own Divorce (Financial Provision) Bill, was seeking to table amendments to the important Government-sponsored Divorce, Dissolution and Separation Bill. The proposed amendments were apparently unwelcome and, in order expressly to dissuade them from this course, the then relevant family justice minister, Lord Keen, wrote to Baroness Deech and Baroness Shackleton on 16 March 2020 promising a ‘review of the law governing financial provision on divorce’.

(13) This promise disappeared from public view until, in the House of Lords on 8 March 2023, there were the following exchanges:

Baroness Deech: ‘... what progress have they made with their three-year review of the law governing financial provision on divorce since the commitment made by … Lord Keen … in his letter dated 16 March 2020 … I fear that the noble Baroness, Lady Shackleton, and I were misled when, three years ago, we were guaranteed a review of the financial elements of divorce. Relying on that, we refrained from pressing amendments. The law that relates to splitting money on divorce is so antagonistic and unreformed that it undermines the alleged good points of the no-fault divorce law. We are lagging 50 years behind nearly every other country in the western world, including Australia. The amount of discretion in our law makes it very hard for unrepresented parties. Money that should go to the children is being spent on legal costs. Even judges have called this law “apocalyptic” – accessible only to the rich. When will the Government reform this very bad law?’

Lord Bellamy: ‘I hope to announce a review of financial provision very shortly … Respectfully, I do not accept the characterisation that the Government have misled everybody; we have had our hands somewhat full in recent times. The Matrimonial Causes Act 1973 reaches its 50th anniversary this year and a review of financial provision is indeed opportune. The Government are in close consultation with the Law Commission, which we consider the most appropriate body to carry out that review.’

Baroness Shackleton: ‘I declare my interest as a practitioner in this field for 40 years. The law is hopelessly out of date: it relies entirely on finance and the discretion of judges. The judges have a fiefdom now in that, since 3 October 2017 you cannot go to the Court of Appeal if leave is refused, so their discretion is absolute. It is normally commercial judges who change the law, and arbitrators, mediators and judges need guidance. There is no use in having a divorce if the money is not sorted out; the house has to be sold and the children are caught in the conflict. Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date. I know that this is not a vote winner and does not appeal to the masses, but many people in this country are touched by this and I would like an assurance that it will be included in the King’s Speech as vital business on the agenda, because responsible Governments do service to this.’

Lord Bellamy: ‘These matters will be considered fully in a forthcoming review, hopefully by the Law Commission’.

(14) The Law Commission announcement, of course, followed shortly after this exchange and it is perhaps safe to assume that the ideas promoted by Baroness Deech and contained in her Divorce (Financial Provision) Bill, which has been on the books of the House of Lords (in various iterations) for a significant number of years, will be at the heart of the matters to be considered carefully by the Law Commission.

(15) It is important to recall the detail of these ideas. If implemented in its current form, the Divorce (Financial Provision) Bill would make some very significant changes to the provisions of Matrimonial Causes Act 1973. The existing s 25(2)3 would disappear and new principles would govern:

• Capital orders would largely be limited to the sharing of matrimonial property. The Bill contains detailed provisions of what is meant by matrimonial property. If the share of matrimonial property is not sufficient to meet the capital needs of one party then there will be no capital topping up mechanism from non-matrimonial property based on needs – that party would simply lose out.
• Pre-nuptial and post-nuptial agreements would (subject to various caveats related to the fairness of their creation) be binding contracts with no discretionary escape route for an outcome based on fairness or need.
• Spousal periodical payments orders would only be available at all in narrower circumstances than at present (the existence of ‘economic advantage derived from contributions by the other’ or ‘economic disadvantage suffered in the interests of the other party’ being important factors) and would be in any event limited to a period of 5 years after the divorce, unless the recipient could establish that a consequence of limiting periodical payments to that term would cause the recipient to ‘suffer serious financial hardship as a result’.

(16) These proposed changes must fall to be analysed against a number of claims made by their promoters and it is suggested that those engaging in this debate in the months and years ahead will need to address each of these claims.

(17) It is suggested by the promoters that the changes, in contrast to the existing law, will be overall advantageous to the cause and empowerment of women. In the words of Baroness Deech, which a perusal of Hansard suggests have a body of political support, in a speech in the House of Lords on 11 May 2018 (emphasis added):

‘This brings us to the nub of the changes in society which this Bill is trying to address. The law for centuries has seen all women as dependants, certainly once they marry, tied to their husband’s financial situation and social status for ever, regardless of the nature of the breakdown or her own capacity. In brief – noble Lords know the social changes all too well – 72% of mothers go to work, according to the Institute of Fiscal Studies, whereas in 1975 only half did. Women’s education and career prospects, equal opportunities and pay law have driven this, and two-earning couples have become the norm. However, to the law, this is unknown. There is a thesis to be written about the absence of the modern working woman from family law. Women with no children and with grown-up children are still treated as incapable by many of our judges … There are those who will say that women suffer in the workplace and from childcare, and that men should continue to make it up to them for the rest of their lives. As long as judges accept as reasonable the demands of some women on divorce for millions and of many more for ongoing lifetime payments, then subconsciously or consciously male employers will never take women as seriously in the workplace as they should. The majority of women who work feel downgraded and belittled by the alleged helplessness and unreasonable demands made by some. Extreme handouts to divorced wives do nothing to help unmarried women and single mothers who are making their own way in the workplace. Women are not all victims, they are autonomous, and sometimes they have to make over property to less well-off husbands on divorce regardless of behaviour. Of course the law is equal, but the attitude of judges is not.’

(18) There may be others who feel that, in practice, many women, perhaps particularly those who make career sacrifices for their children, will not overall be treated advantageously by the proposed changes to financial remedies law and their needs will go unmet as a result of such changes and that injustice will inevitably result. Such people may regard these changes as turning the clock backwards rather than forwards, introducing greater unfairness than exists in the present system.

(19) Of course, there are many gradations on the scale here, and the words of a statute can dictate the number and breadth of clauses designed to enable a Judge to exercise discretion to give relief from injustice and this essentially political debate will have to take place and the Law Commission will have to come to a conclusion on this difficult area in their scoping paper. Ultimately, though, elected politicians will have to decide where the balance properly lies as a matter of social justice.

(20) It is suggested that the promoted legal structure and fixed principles would be significantly clearer, with much less scope for judicial discretion, such that the scope for family lawyers to make so much money out of the divorcing community by adversarial conduct would be much more limited. In the words of Baroness Deech, ‘The amount of discretion in our law makes it very hard for unrepresented parties’. In the words of Baroness Shackleton, ‘Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date’.

(21) Others may fear that the capacity of lawyers to argue, and to charge a lot of money for arguing, would not be diminished by a new legal structure and more fixed principles, indeed might be increased by a new generation of family lawyers taking points on what was meant by terms such as ‘economic advantage derived from contributions by the other’ or ‘economic disadvantage suffered in the interests of the other party’ or ‘suffer serious financial hardship’ or the overall definition of matrimonial property. After all, at least with the benefit of hindsight, it was perhaps inevitable that the statement made by Lord Nicholls of Birkenhead in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 that when the marital partnership ends each is entitled to an equal share of the assets of the partnership ‘unless there is a good reason to the contrary’ would greenlight a near two decades of arguments over what is or is not ‘non-matrimonial property’ and ‘matrimonial property’ and whether the former has been ‘mingled’, ‘churned’ or otherwise ‘matrimonialised’. It may therefore be that many years of greater uncertainty would follow while a new Act bedded down.

(22) Many would also argue that judge-made case-law has made the current law tolerably clear in any event, albeit with important safety valves to promote fairness. In the words of Peel J:4

‘The aim must always be to combine fairness and efficiency. I firmly believe that financial remedies law is not, or should not be, as complex as sometimes it is made out to be. Dare I suggest that the law, centred on familiar principles of sharing and (most commonly) needs, within the overarching section 25 matrix, is reasonably settled. The vast majority of cases, dealt with by specialist judges, can be dispatched relatively swiftly.’

(23) Some may also argue that the attractive wish to reduce adversarial litigation and the legal costs of divorce would be more likely to be enhanced by improving procedures, and that such thoughts should be considered by the Law Commission, even though they do not fall within the express agenda. There are many ideas in this area; but let me identify one which has gathering support – the Single Lawyer Solution. Instead of each party having a lawyer who, in each case, feels it necessary and appropriate to score points by taking chunks out of the other side (and charging a lot of money for the effort and quite often not taking the case any further forward), the parties cooperate by appointing one lawyer who advises them both as to a fair way forward at a fixed cost. The Divorce Surgery (ably led by two barristers, Harry Gates and Samantha Woodham) promote this methodology and the process, and its manifest advantages, are described in their article ‘Someone! Do Something about costs! The Single Lawyer Solution’ (emphasis added):5

‘Couples can, and increasingly are, being advised from the outset together as to what constitutes a fair outcome in their circumstances, enabling them to settle at the earliest stage. Precisely because a joint process involves neither litigation nor communication back and forth between opposing legal teams over financial disclosure collated in adversarial fashion over extended timeframes, it is entirely possible to offer such services for a fixed fee. Lawyers can therefore feel comfortable to propose such an arrangement. Couples can budget.

… we now propose that something be done: specifically, a radical shift and cultural pivot towards making joint advice the default first step in financial remedy practice. The provision of a court room at public expense and the ability to be heard in contested litigation should depend on having satisfied that requirement, absent some disqualifying feature of the kind referenced above. Cases will settle, busy court lists will reduce (so prioritising judge time for the truly meritorious), public money will be saved and – back to the point under discussion – family finances will be protected from the costs of litigation …

But could more be done? Might a summary of the joint advice from the single lawyer be made open and available to the judge at the outset and in the course of any future litigation between the couple? In principle, it is easy to see how doing so might prove an effective brake on free-spending litigation: the parties could expect to be asked to explain and justify why they propose to depart from their joint advice. Decisions on LASPO costs could take into account the joint advice – a litigant wishing to argue against the single joint advice should have the task of justifying why a LASPO costs order should be made. Then later following judgment, success or failure in bettering the identified bracket could be made a relevant factor in the assessment of costs – an unsuccessful party should ordinarily expect to bear the costs unnecessarily incurred by rejecting the single joint advice if it has turned out to be correct. The attraction to the judge hearing the case would be plain and the existence of joint legal advice should be a significant inhibitor to ongoing litigation.’

Wider powers to make orders in respect of adult children

(24) An intriguing express inclusion in the Law Commission agenda for review is the item requiring thought on ‘Whether there should be wider powers for the courts to make orders in respect of children of the family who have already attained the age of eighteen’. I have pondered on what is really being targeted here. I wondered whether this item was referencing the ideas of Williams J in DN v UD [2020] EWHC 627 (Fam) to extend the meaning of ‘special circumstances’ under Children Act 1989, Sch 1, para 3(2)(b),6 which did not meet the approval of the Court of Appeal in UD v DN [2021] EWCA Civ 1947. I wondered whether this item was a reference to the fiendishly complicated ‘baton-passing’ provisions of Children Act 1989, Sch 1, which dictate when a child, as opposed to one of the parents, may and/or can make an application7 for financial provision against the other parent. Both of these matters would certainly justify a serious review, but neither of my thoughts can be right because the terms of reference make clear that the review will not consider ‘The law relating to financial provision for children under Schedule 1 to the Children Act 1989’.

(25) Having ruled out these thoughts, I confess I have had difficulty identifying what is being reviewed here and what wider powers are to be considered and what has happened to cause the Law Commission to wish to consider them.

Conduct

(26) Another intriguing express inclusion in the Law Commission agenda for review is the item requiring thought on ‘The operation of “conduct” as a factor to which the court must have particular regard when deciding to make financial remedies orders’.

(27) The 1973 Act, under s 25(2)(g), expressly allowed the court, in determining its award, to take into account ‘the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’. Conduct (often in the form of adultery) had hitherto typically been regarded as a significant feature for the court to factor into an outcome, but not long after the 1973 Act came into force, the Court of Appeal, in the form of Lord Denning in Wachtel v Wachtel [1973] EWCA Civ 10 firmly shut the door to the consideration of conduct in almost all cases. In Lord Denning’s words (emphasis added):

‘When Parliament in 1857 introduced divorce by the Courts of law, it based it on the doctrine of the matrimonial offence. This affected all that followed. If a person was the guilty party in a divorce suit, it went hard with him or her. It affected so many things. The custody of the children depended on it. So did the award of maintenance. To say nothing of the standing in society. So serious were the consequences that divorce suits were contested at great length and at much cost. All that is altered. Parliament has decreed:- “If the marriage has broken down irretrievably, let there be a divorce”. It carries no stigma, but only sympathy. It is a misfortune which befalls both. No longer is one guilty and the other innocent. No longer are there long contested divorce suits. Nearly every case goes uncontested. The parties come to an agreement, if they can, on the things that matter so much to them. They divide up the furniture. They arrange the custody of the children, the financial provision for the wife, and the future of the matrimonial home. If they cannot agree, the matters are referred to a Judge in chambers.

When the Judge comes to decide these questions, what place has conduct in it? Parliament still says that the Court has to “have regard to their conduct”. Does this mean that the Judge in chambers is to hear their mutual recriminations and to go into their petty squabbles for days on end, as he used to do in the old days? Does it mean that, after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame – or, as we would prefer to say – both parties have contributed to the breakdown. It has been suggested that there should be a “discount” or “reduction” in what the wife is to receive because of her supposed misconduct, guilt or blame (whatever word is used). We cannot accept this argument. In the vast majority of cases it is repugnant to the principles underlying the new legislation, … the Court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.’

(28) The years since 1973 have not seen any re-opening of the door: see, for example, S v S [2006] EWHC 2793 (Fam) and the first reference to the ‘gasp factor’ and the law has seemed well- settled. The suggested redefinition of ‘conduct’ by the Divorce (Financial Provision) Bill seems, if anything, to close the door slightly tighter by suggesting that conduct will be taken into account only if it ‘has adversely affected the financial resources of a party’ or would be ‘manifestly inequitable to leave conduct out of account’. So what is the logic of the Law Commission now reviewing the issue of conduct?

(29) Perhaps the logic is to be found in the rising concerns about domestic abuse, which have found their way into various aspects of family law, most obviously in the passing of the Domestic Abuse Act 2021. Plainly, the presence of an abusive relationship can affect the procedures adopted by a court in ensuring that the victim of domestic abuse is able properly and fully to participate in the proceedings, but there are a growing number of voices suggesting that the presence of domestic abuse should affect outcomes,8 in particular where the abuse has a significant financial effect on the victim,9 but also sometimes where the ‘consequences are not financially measurable’.10

(30) If these voices are successful in persuading the Law Commission to open the door (even a little) on conduct, then great care will have to be given to avoid the danger identified long ago by Lord Denning of the court being required by parties ‘to hear their mutual recriminations and to go into their petty squabbles for days on end’. The challenge for the court is to be able to distinguish (in advance of hearing any evidence) between what is a petty squabble and what is something much more serious. Judges hearing private law children cases in the last few years will be well aware of the huge increase in fact-finding hearings in recent times as domestic abuse issues have risen up the agenda.

Pensions

(31) The Law Commission will also consider ‘The treatment of pensions on the division of parties’ assets on divorce … and whether they are overlooked when dividing the divorcing parties’ assets’. The Pension Advisory Group, which will shortly be publishing its update (PAG2) on the 2019 report, A Guide to the Treatment of Pensions on Divorce, is keen to assist the Law Commission in its review and has already offered its full cooperation and assistance.

HHJ Edward Hess delivered the paper which forms the basis of this article at the FLBA Cumberland Lodge meeting and the 3PB Family Law Conference, both in early May 2023.