Ministry of Justice report on the implementation of Law Commission proposals

Published: 19th January 2017

A report has been published by the Ministry of Justice that highlights the implementation of proposals made by the Law Commission.

The ‘Report on the implementation of Law Commission proposals’ was released on 13 January 2017 and indicates the progress that has been made in regards to implementation over the past 12 months. There have been numerous Law Commission proposals implemented duringthis time, as part of agreed reform programmes and other additional referrals.

There are, however, several elements of the proposals that relate to family law, of which some are awaiting the Government’s approval, particularly in the areas of Marriage Law, Property Rights for Cohabitants and Matrimonial Property, Needs and Agreements.

Marriage Law

When the previous Government was in power, a change of the law was discussed with regard to ‘non-religious belief organisations’, including humanists being allowed to conduct legal marriages. It was found that there could be implications of this change, thus they requested that the Law Commission conduct a review into the law on marriage ceremonies. After a preliminary ‘scoping study’, the Law Commission reported back to the Government in December 2016, with the Government set to ‘respond in due course’.

Property Rights for Cohabitants

In July 2007, the Law Commission published a report that included recommendations based on rights during the breakdown of a relationship. The ‘Cohabitation: The Financial Consequences of Relationship Breakdown’ report, recommended that a ‘statutory scheme’ should be created, in order to give property rights to ‘qualifying cohabiting partners’ against each other should they separate. There were also similar recommendations based on cohabiting partners in a report titled ‘Intestacy and Family Provision Claims on Death’, which was published by the Law Commission in December 2011. This particular report made recommendations that would see cohabitants have the same entitlement as a spouse or civil partner on intestacy, giving cohabiting partners more rights under the Inheritance (Provision for Family and Dependants) Act 1975.

Due to plans already in place for a major reform of the family justice system, the Coalition Government stated in September 2011 that they would not act upon the recommendations made by the report published by the Law Commission in 2007. It was also announced in March 2013 that, due to the planned reforms, the recommendations that were made in the 2011 report would not be taken any further.

Matrimonial Property, Needs and Agreements

In February 2014, the Law Commission published its final report on Matrimonial Property, Needs and Agreements, making recommendations for clarifying ‘the law of financial needs on divorce or dissolution of a civil partnership’. Not only would this mean that the law would be consistently applied across UK courts, but judicial best practice would be reinforced. The report also investigates whether ‘an aid to calculation of spousal support could be advised’ and recommends introducing ‘qualifying nuptial agreements in England and Wales’. This would be applied via enforceable contracts, of which would contain several ‘related provisions and safeguards’, meaning that couples would be able to make binding arrangements in relation to finances, should they go through a divorce or dissolution.

Within the report, there were two main proposals that did not require legislative reform, meaning that the Government was able to accept and take action on them. This included the Family Justice Council being able to develop and introduce guidance for unrepresented litigants and separating couples based on issues regarding finances. It also included the Ministry of Justice working towards building an online tool to support couples during separation, helping them to agree financial arrangements privately within their divorce.

The report also stated that the government ‘is considering the Law Commission’s recommendation on qualifying nuptial agreements as part of a wider consideration of private family law reforms and will respond in due course.'

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