The Imerman judgement: does this picture ring true?

Family Law|August 7th 2010

When I read the Imerman judgement, there is one passage that jumps off the page and startles me. It is this reference to a marital lifestyle:

“If a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk.”

I don’t know about you, dear reader, but my twenty-first century family home does not have a separate study for the master of the house, let alone two for both master and mistress.

Perhaps we would review our floorplan if we were both working from home  – after all, we have our separate offices outside the home  – but frankly, I doubt it. The idea that there could ever be a private room in our house, for one spouse only, from which others are barred except by invitation is wholly alien to me. I suspect that it is alien to all but a few of you too. We are married and we have agreed to share our lives. Everything is shared, including our day-to-day finances and the rooms in our house. In any case and as with millions of other families in this country, our budget doesn’t run to private rooms.

However it seems to me that in the Imerman judgement, the concepts of separate studies and separate finances are not regarded as anything out of the ordinary. That this should be so in a leading judgement delivered by the Master of the Rolls, a judgement that will lead to disastrous outcomes for so many divorcing couples in this country, concerns me greatly.

Can it be that the elevated lifestyles enjoyed by judges, particularly those at the top of the tree, may influence the way a case is approached and affect the decision?

The idea that our judiciary is “out of touch” with modern life is not a new one. We may have an image in our minds of a bewigged judge peering over his half-moon spectacles and asking, in confused tones, “Who are The Killers?” We sigh, especially those of us who enjoy the thumping  beat of The Killers’ music, and we take it in good humour.

At least, I did. Now I am not so sure. In 2009 statistics showed that only 19 per cent of judges were women, and only 4.5 per cent were from minority backgrounds. Earlier this year Lady Neuberger, the Master of the Rolls’ sister-in-law and a Liberal Democrat peer, chaired a government-commissioned report that made more than 50 recommendations to increase judicial diversity.

“We have talked to groups about what it feels like to be in a court which is not as reflective of society as it should be,” noted Lady Neuberger. “It is serious that for some people the bench should be so different from them.”

The Imerman case is an example of a judgement that is considered “proper” by a few decision-makers, with talk of private studies and so on, but is considered plainly and utterly wrong by just about everyone else. Is this judgement “as reflective of society as it should be”? I think not: as I have noted in a previous post, the Imerman case is “the most extreme case possible in terms of the vast wealth of the parties involved”, but the decision has horrifying implications for ordinary couples.

I have encountered a number of judges who sit on the High Court bench and higher. I admire many of them. However I do not think it is controversial or even daring to say that I have been struck by some of the similarities between them. They are almost always London-based barristers – there are rare nods to the provinces, and even rarer nods to solicitors – aged 60 and over, many of whom speak with cut-glass accents.

That our judges are all intellectually brilliant there is no doubt. But don’t judges need to be more than brilliant? Although it is unlikely that many of our judges will have experienced life on benefits, surely they need to have a good understanding of others, irrespective of their own backgrounds?

We do not have a codified system of law in England and Wales. This means that judges, at the head of the judiciary, have the power to make decisions that affect the lives of all of us. They have to make the right calls, and their decisions have to be the best ones. Otherwise, there opens a chasm dividing millions of ordinary working people from a few, cloistered individuals who sit in judgement and shape our law – albeit with the best of intentions.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Marion says:

    Fantastic post. I absolutely, wholeheartedly agree with every word you write.

    When are you going to become a judge???

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