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A legal definition for ‘needs’ upon divorce

17.09.2012

The Law Commission launched a supplemental consultation paper last week with the aim of seeking to provide a legal definition of the term “needs”. Family lawyers have been used to running these arguments in courts for years but without specific guidelines.

Case law has sought to offer guidance on what constituted needs but in the vast majority of cases this has been determined by the Judiciary based upon their discretion.

Terms such as “reasonable requirements” and “generously interpreted” have also been closely followed by those such as “compensation” and “transition”.

So one of the aims of this consultation paper which closely follows last years Marital Property Agreement paper (pre-nups) is to establish if possible to what extent one spouse should be required to meet the others financial needs and what exactly is meant by need so that pre-nups could be drafted on an understanding that they could not restrict the others needs.

Professor Elizabeth Cooke has posted a You Tube video to explain further.

The second part of the paper seeks to define what happens to property that one of the partners owned before the relationship or acquired during the course of it, such as a property or inheritance.

The two issues can somewhat overlap given that the courts current view is that assets should be shared equally provided needs have been met but that assets acquired or owned can be exempt from the sharing principle if the needs have been met.

The closing date for submissions is 11th December 2012 and although the Commission does not expect drafting a bill immediately it anticipates further work and possible piloting of recommendations as early as Autumn 2013.

A full copy of the paper is available here.

If you’d like to discuss any aspects of this article further, please contact Mark Sage at mxs@barcanwoodward.co.uk

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