In choosing to examine the status of pre-nuptial agreements, the Law Commission has missed an opportunity to clarify the wider and far more significant issue of how to split marital assets on divorce.

Confirming the position on pre-nuptials will at best serve only well-heeled couples who may be spared some pain if their marriages founder. The commission’s time would be better spent considering a reform of the law that deals with the division of marital assets on divorce. This would have far-reaching consequences and would touch many more people than will benefit from prenuptial agreements achieving legal status.

Since Parliament last considered the issue of splitting assets in the Matrimonial Causes Act 1973, lawyers are faced with 35 years of contradictory case law that has created confusion, uncertainty and fertile ground for litigation in divorce.

Despite the high publicised decisions of the House of Lords in the Miller and Macfarlane cases and numerous recent decisions in the Court of Appeal, family lawyers are unable to give confident and certain advice to their clients about the outcome of financial disputes on divorce.

When is it fair for one spouse to receive more than half of the family assets? And if it is fair for one spouse to get more than half, how much more?

How much money does anybody need to receive as a lump sum to stop them needing maintenance on top? If maintenance should be paid, how should the level be set? Should it be enough to meet day to day needs or enough to compensate someone for a career forsaken for parenthood? How can such compensation be calculated?

Ask 10 divorce lawyers or judges these and similar questions and you will get 10 different answers. The result is that divorcing couples seeking to move on swiftly from family breakdown cannot be certain of being able to do so.

The commission’s criteria for selecting projects include the importance of the issues, the extent to which the law is unsatisfactory and unclear and the potential benefits of reform.

The importance of certainty for divorcing spouses and their children is self-evident. It is hard to imagine that there is an area of law that is more unclear not only to litigants but to its practitioners.

The benefit of reform to many thousands of litigants and their families would unquestionably be worth the resources that the Law Commission considers would be needed properly to consider the issues.

Undoubtedly, divorce and its repercussions present a political minefield. Tinkering with the problem, represented by a consideration of prenuptial contracts, rather than tackling it head on, is not a proper answer to a question causing considerable difficulties, emotional and financial, to many families.

If the Law Commission will not deal with the issue, Parliament should.

Joe Vaitilingam is a partner at Hughes Fowler Carruthers.

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