Fairness means more than 50/50

Divorce|May 20th 2008

Or, as we lawyers put it, the “Objective of the Court in financial arrangements is to achieve an outcome which is fair”

Two round trips to London in the lasts seven days has involved two 5am starts, four train journeys, and a stimulating but challenging work schedule in our vibrant capital.

I enjoy London very much- particularly the buzz of the lawyers rushing up and down Fleet Street and Chancery Lane into and out of the nearby courts offices and barristers chambers. I love the wine bars and coffee houses the lawyers gather in and above all I am fascinated by the history of this glorious city, still obvious in the “old world” buildings and street names. As a lawyer I’m so proud to take part in this daily spectacle, but also very glad to be able to escape back to the hills of Yorkshire to breathe the fresh air and saturate the sight of the cherry blossom during an hour’s early morning run on the lush green “Stray” in Harrogate, before starting work at Stowe Family Law in a former Victorian Court House, overlooking another tiny, but pretty park.

As a young girl at the beginning of the 20th Century, my late granny would holiday with her granny to “take the waters in Harrogate, which was renowned for being a famous spa. More than a century later, my granny and great, great granny, would no doubt be thrilled to know I love Harrogate as much as they did!

But back to London. One reasons for my trip, was to have a conference with James Turner QC, James Turner who enjoys an enviable reputation in family law but also in criminal law, at his prestigious chambers at 1 Kings Bench Walk. The clerks are very welcoming, their hospitality was brilliant. Unfortunately it was boiling hot, and the air conditioning wasn’t working too well, and certainly nowhere near as well as Mr. Turner’s brain!. He was advising my client in a family matter and it was a very interesting conference. He demonstrated not only brain power but genuine empathy with the emotions of the particular client.

This week I also came across a reported case of B-v-B (2008) EWCA Civ 543, in which James Turner appeared for the appellant wife. This too is an interesting case because the Court of Appeal has been considering the issue of “fairness” and taken this opportunity of expounding “fairness” in the context of recent law which to many lawyers since 2000, with the often misunderstood decision of the House of Lords in White –v- White, has been more about “equality” as a starting point in terms of division of the family assets and thus a demand for 50/50 share irrespective of the factors contained within s25Matrimonial Causes Act 1973, which might mitigate against equality.

In B-v-B, the wife had provided all the capital of the marriage. She had a substantial inheritance. The husband was from Kosovo and had no assets. The couple married in 1991 and had a child. For the first seven years they lived off inherited capital which was used to buy the home, the husband did casual work to help the family budget. The wife also gave the husband capital to set up a car wash business which prospered. The Court of Appeal had to consider whether it was fair in the context of a long marriage, to share the assets equally. They held it was not. They also held that achieving fairness does not mean in every case there should be equality. Lord Justice Wall made a point which he specifically directed at a wider audience than the parties in the case.

He referred to the relevant passage in Lord Nicholl’s judgment in the leading case of White –v- White 2001 1(AC) at p 604, about “fairness” and stated that the court’s objective is to achieve an outcome which is “fair” Further more, “equality” is not a starting point for division of assets. It is rather as per Lord Nicholls, a “cross check” and, as such, equality may be departed from if there is a good reason for so doing. In this particular case, the provenance of the assets would not be disregarded.

I welcome this. I have been involved in recent cases, where “the opposition” has taken the firm line of 50/50, and no negotiation. I don’t think it is as simple as that, and there are occasions when 50/50 cannot be fair. As Lord Justice Wall said, one of the frustrations in family law, is that no two cases are ever the same. He said it is also one of the fascinations, and he is right. It makes the job if advising a client that much harder. It is a matter of good judgment.

Last Friday, the Law Society issued professional guidance into the conduct of a first interview. Designed to assist the lawyer to give the best advice to the client, the guidance requires a client attending the first interview to be advised both at the interview and in writing of the issues involved, the costs of the first interview and the costs thereafter, the firm’s complaints procedure, money laundering requirements and so forth. It is comprehensive and I suggest all practicing solicitors (if they haven’t done so already!) and any new client about to consult a solicitor should read it.

In practice, I find above all, a client is seeking reassuring advice about how the case is going to progress and what the likely outcome will be. I noted quite wryly from examples given by Lord Justice Wall, that lawyers were having the same problems identifying the outcome to a client in the 1970s’, through the 1990’s as they are today. It is all a matter of judgment.

Having said that, is it so hard? Understanding and applying s25 MCA is the key, and applying each factor to the facts of each case, looking at contributions and needs, usually results in a ball park answer. Cross check against equality – is there reason to depart from equality? Does it look about right? And it probably is.

I don’t think the ability to give this type of advice is easily learned. It takes years of experience, years of involvement in different cases with differing facts and all with differing outcomes. The answers aren’t always obvious. They will often require much thought, skill and argument to be successful.

In summary, if you have glibly or flat-footedly been advised that the outcome is “a predictable 50/50 split” and you aren’t happy, my suggestion is get a second opinion. It could be well worth the extra cost.

Author: Stowe Family Law

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