Divorce proceedings: are formulas "family-friendly"?

 

Divorce proceedings will become cheaper and more consistent, according to senior members of the judiciary.

Canadian-style "cookie-cutter" justice could soon become a permanent fixture through reforms being proposed by the Law Commission.

Import of Canadian divorce law

The Matrimonial Property, Needs and Agreements Consultation looks set to incorporate the Canadian Spousal Support Advisory Guidelines.

Under the changes, the amounts that divorcing couples can expect to receive will be calculated by a mathematical formula that considers factors such as the length of a marriage and the number of children.

Judges will be able to vary pay-outs. However, for the most part, the new formula will set upper and lower guide limits for settlements. For childless couples, the length of the marriage and income differential will decide the settlement and the duration of post-divorce support.

The aim of the reforms is to increase consistency in divorce judgments - providing couples with clarity regarding their entitlement if they decide to part ways and reducing the cost of divorce by deterring unrealistic claims.

"Cookie-cutter" justice

Critics of the system, introduced in Canada in 2008, argue that it is "cookie-cutter" justice in which divorce settlements are too rigid, rather than based on the merits of each case.

"A one-size-fits-all approach creates a big risk that fairness in individual cases won't be maintained," said Jonathan West, head of family law at Prolegal.

Whilst cost reduction is a worthwhile cause, West views higher costs as the trade-off for securing justice: "...to look at cases in a bespoke way may cost more than the 'cookie-cutter' model but, if we're committed to maintaining the highest standards of justice and fairness...there's no substitute."

However, West does concede that the current system is in need of reform and points to the problematic use of 'joint life orders,' in which one spouse is required to pay maintenance to the other for a period of time significantly longer than the marriage. "The current system discourages the poorer spouse from remarrying because doing so would jeopardise their income," claimed West.

In defence of the new guidelines, their supporters highlight that their use is entirely voluntary and outline a number of exceptions that justify departure from the formula, such as marital debts, prior support obligations, disability and unequal property division.

Although reminiscent of the formulaic approach adopted by the largely unpopular Child Support Agency, the Canadian experience suggests that the guidelines may yet prove that formulas can indeed work for families.

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