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6 J. Soc. Welfare & Fam. L. 1 (1984)

handle is hein.journals/jnlosclwl6 and id is 1 raw text is: Reforming Financial Provision: The Alternatives By John Dewar School of Law, University of Warwick Three Law Commission Reports, two from England' and one from Scotland,2 have recently stimulated discussion of the reform of financial provision.' Both sets of proposals deserve close attention-the English, because they are em- bodied in the current Matrimonial and Family Proceedings Bill4 and the Scottish because, although less likely to become law, they provide both an interesting comparison with the English proposals, and a valuable contribution to the debate in themselves. This article will compare and examine the approaches and recommendations of the two Commissions, and will argue that while the Scot- tish approach is preferable, both reveal shortcomings which those planning legislative reform in this area should bear in mind. The two Commissions approach their common task in very different ways. While the English Commission is content to tinker with the existing frame- work by suggesting changes of emphasis, the Scottish Commission proposes a complete substitution of the existing Scottish law (such as it is) by new and clearly expressed principles. To a certain extent, this divergence is explained by differences in the existing laws of the two countries: in England, section 25 of the Matrimonial Causes Act 1973 provides a ready made framework which has been in use now for over a decade, while in Scotland, there is no such frame- work and judges there have a virtually complete discretion.5 However, the dif- ferences are deeper than this and extend to each Commission's own view of the nature of its function. For example, the English Commission considers itself ' Law Commission No. 103, Family Law, The Financial Consequences of Divorce: The Basic Policy, A Discussion Paper (October 1980); Law Commission No. 112, Family Law, The Financial Consequences of Divorce (December 1981). 2 Scottish Law Commission No. 67, Report on Aliment and Financial Provision, Part III. ' See Eekelaar and O'Donovan, (1982) 46 M.L.R. 420; Deech, Financial Relief: The Retreat from Precedent and Principle (1982) 98 L.Q.R. 621; Barnett, Financial Pro- vision on Divorce: Reforming s.25 (1981) Family Law 229; Smart, Justice and Divorce: The Way Forward? (1982) Family Law 135. * The Bill, introduced by the Lord Chancellor in the House of Lords, received its first reading on November 2, 1983. The Bill amends the present s.25, M.C.A. 1973 by abo- lishing the principle of life-long maintenance, and replaces it with a directive to give first consideration . . . to the welfare ... of any child of the family; s.25A of the Bill introduces the emphasis on the clean break and self-sufficiency as recommended by the Law Commission. The Bill has been the object of criticism: see Polly Toynbee, A charter for middle-class men in late middle-age, The Guardian, November 7, 1983; Angela Phillips and Clare Dyer, Money and Divorce: the new battle, The Sunday Times, November 6, 1983; The Marriage Break, New Society, November 10, 1983, Vol. 66, p. 227; Moves against women L.A.G. Bulletin, November 1983. ` s.5(2), Divorce (Scotland) Act 1976 provides that a court may award periodical pay- ments or a capital sum as it thinks fit. The Scottish Commission describes this as an abdication of all collective responsibility in favour of the conscience of the single judge (para. 3.37). 1

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