Lessons in family property law reform: The British Columbian experience

In England and Wales, notwithstanding the judicial development of guiding principles designed to underpin the application of the court’s discretion in the reallocation of assets pursuant to the Matrimonial Causes Act 1973, the financial consequences of divorce remain ‘largely discretionary’ (J Scherpe, ‘A Comparative Overview of the Treatment of Non-Matrimonial Assets, Indexation and Value Increases’ (2013) 25(1) CFLQ 61, 73). As Scherpe observes, ‘the overarching principle is to achieve fairness, which is a rather vague term, and section 25 of the Act [which enumerates the factors to be taken into consideration in the exercise of this judicial discretion] does little to instil more certainty’. In Ireland, in light of the even broader discretion afforded to the judiciary pursuant to the Family Law (Divorce) Act 1996 and the almost complete absence of judicially developed principles, arguably still greater uncertainty prevails vis-à-vis property division on divorce.