Yes Minister: are policitians right about divorce reform?

Family Law|September 11th 2012

Yesterday, we took a detailed look at the opening of the Law Commission’s supplementary consultation on needs and non-matrimonial property. Today I would like to share a few of my thoughts in relation to the exercise of judicial discretion in obtaining a financial remedy on divorce or dissolution of a civil partnership.

No-one who works in family law can pretend that section 25 of the Matrimonial Causes Act 1973 is easy to put into practice if you aren’t familiar with how it operates as either a judge or family lawyer.
When the law was first introduced, good reasoning lay behind it: every case was to be carefully considered and interpreted on its own merits. No family is the same. Families live in different types of houses, with different incomes, different lifestyles and different priorities.

So in giving no particular weight to any of the factors, the law makers of 1973 gave wide powers to the judiciary. There was no set formula. The judiciary were left to literally take whichever of the Section 25 factors they thought appropriate to the case, and apply them to their reasoning but overall on the basis that the couples would be encouraged to move on with their lives and at some point there would be no further financial responsibility either way.

They were confident that judges would devise fair answers for every single case, and I believe that has remained the position. Since then judicial discretion has provided the virtual backbone to divorcing couples’ financial settlements, permitting the lower level judges who daily deal with the vast majority of the cases in this country to divide relatively modest assets fairly between parties.

In 1973 however the legal system as a whole was very different. Every one of us also had unrestricted access to the law and if we couldn’t pay for it, legal aid would step in. Most of what is now called ‘Middle England’ would have qualified for legal aid at that time in some form or another, although some perhaps might have made a contribution to the costs.

How times have changed. Now most people face the prospect of going to court with horror. They not only haven’t a clue about the law, but they have no means of paying for legal representation. It is a catastrophic situation.
This isn’t just the fault of the present government, who have finally killed off legal aid. Successive governments have all whittled away at eligibility for legal aid, at the same time increasing its bureaucracy to make it as unattractive as possible to both lawyers and clients – all while continuing to throw millions of pounds of taxpayers’ money at legally-aided fraudsters and asylum-seekers.

But now we have reached meltdown. Only 200,000 of the poorest retain eligibility for legal aid until April next year. That means that hundreds of thousands of people can no longer afford to hire legal representation and the government has to find some way to deal with all those people who will soon start to swamp the courts without lawyers. Not least, because a 2011 survey quoted in the report stated that people looking for formal legal advice are still most likely to turn to a solicitor (24 per cent) – as opposed to local councils (16 per cent), the CAB (also 16 per cent), or trade unions (10 per cent).

So what  to do about all this?

You can imagine a real life “Sir Humphrey” blandly advising the politicians: “Keep as many as you can out of court- force them to mediate!” and in fact that is exactly what is happening with new draft legislation announced last week. Everyone applying for an order in ‘relevant family proceedings’ must attend mediation. People weren’t mediating voluntarily. So, ignore the many, many problems of mediation! Instead force them!

It clearly doesn’t matter to the government for example, that mediation is predicated on the willingness of the participants to both attend on equal footings. Nor that mediation is to take place far too early when couples are not ready for it, so it is unlikely to succeed. And worse, far worse – that mediation may not even follow legal principles, if the mediator is an unqualified individual. The phrase the blind leading the blind comes to mind!

The pitfalls are legion. Practitioners know all this and so do the judiciary, but the government clearly doesn’t seem to want to know, or care, just so long as they get people to stop exercising their democratic right to flood the creaking courts.

A hypothetical Sir Humphrey might also have advised: “If the law requires judicial discretion, let’s not only remove court users from the judges, but let’s also remove judges from the law!”

That was certainly the suggestion of the accountant David Norgrove in his family justice review final report. He called for “a codified framework which could reduce the need for judicial determination” in relation to financial provision on divorce. It all seems so easy.

Until, as the Law Commission point out, you realise that it just isn’t.

The downside to removing discretion is that, with a rigid formula and without judicial intervention to ensure a fair outcome, injustices are far more likely to occur and we could end up with even more divorcees thrown to the mercy of the state, without appropriate maintenance and insufficient capital to rehouse them and their children.

If there really was a quick fix or an easy answer, this consultation would have reached a different conclusion. But there isn’t.

As the Law Commission rightly states in its detailed report, currently the vast majority of financial cases do settle. So between the parties, their advisers and the judiciary, the current law does work well and the outcomes are fair.

So is there a case for reform at all?

As a practitioner I can certainly see some tweaks are required. So I would suggest:

  • Let’s make it much clearer what the Section 25 factors actually mean and how they are applied.
  • Let’s give more authoritative guidance to help couples define their own financial needs and importantly, much more guidance as to the wide range of possible outcomes, so they are more fully informed.
  • Let’s ensure that judges throughout the country work together to produce more uniform outcomes particularly in relation to imposing term orders and clean breaks when there are children involved.
  • Let’s not forget that the law requires the parties to become financially independent of each other, so let’s also tweak the law in relation to spousal maintenance, to ensure that spousal maintenance orders for most do have a cut-off point, and the outcome of short childless marriages does not result in an undeserved windfall.
  • Let’s give consideration to the meaning of “non-matrimonial” property within new legislation. As to which…another post is coming shortly!
Author: Marilyn Stowe

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.

Comments(18)

  1. JamesB says:

    Hi, I have a query with this s25 please. Does the law here really state that if there is an argument between the parties and a doubt on the argument by the Judge, then the benefit of the doubt must be given by the Judge to the party who look after the children? I believe it does, but this might be an urban myth perpetrated by fathers organisations?

  2. JamesB says:

    If so, will this be the case in future? If so, expect more and more men to navigate away from this law either by pre nups or mor likely (cheaper) by not getting married.
    If it doesn’t say this, I may marry my girlfriend, so would appreciate the answer pls.

  3. Graham says:

    Actually, given that we are not America, I think the reluctance to marry is probably divorce on demand contrary to the vows and aim of marriage.

  4. Observer says:

    James, I don’t know any myths perpetrated by father’s groups, probably for the simple reason that none really exist. Such groups, if you can call them that, are highly fragmented things, with fathers, grandmothers, brothers and sisters, usually speaking up against institutional injustice that they have seen, and which they have seen other suffer.
    It does seem evident today though that men are more and more reserved about committing, because of what they have heard about family law through the grapevine. This is of course not good news for those women who would like the nuclear family scenario, nor is it good for men who are then routinely accused of being abusive for having a fling. It’s a sad scenario all round, but with so few organizing to support fathers in their role as parents, and encourage men to be less fearful of committing, I’m afraid the unhappiness will just continue.
    It’s rather the myths of the highly organized women’s groups (usually made of very angry and unhealthy individuals) whom we have to thank for this tragedy. And it is a tragedy, and perpetuates the institutionalized child abuse that we see in the family courts on a daily basis.

  5. Marilyn Stowe says:

    James
    See the law:-
    It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 [F2, 24A or 24B] above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
    Regards
    Marilyn

  6. JamesB says:

    Thanks both. I do think it’s sad the demise of the family and increase in single households and agree with you on that Observer and the causes.
    Marilyn, thanks for that. I am not a lawyer and would not be able to find it else. While laudable in it’s goal I do think it is misguided and causes what it seeks to prevent, namely unhappy children as discussed in this thread with observer and I. I do not see many ‘normal’ people taking the pre-nup option and writing their own vows option as an alternative either. Sorry I could not be more positive here.
    To be positive I will say men and women need to need each other and it is good when they get on and support each other without feeling they are being leached on by thinking about the law. If they can do this without lawyers and live happily ever after then that is good. Failing that … don’t like the law you quote or pre nups. The future seems to be co habitation, then, if you try to intervene to make that ‘fairer’ (contrary to natural law), living apart. People will do most anything to avoid this type of law. I know I will and will insist the same for my children.

  7. JamesB says:

    To summarise my point, ancillary relief (or co-habitation) law should not be a paracites charter.

  8. JamesB says:

    My recommendations, 1. Abolish Unreasonable Behaviour as a ground for divorce. 2. Take out the section you quote above. If either of these two are politically not possible, then do option 3. Do nothing. Then watch the world co-habit and have have ‘common law’ (outside the dodgy Establishment of Judges – e.g. Sheffield Police, Hillsborough, etc.) marriages.

  9. JamesB says:

    I meant if doing both of them is not possible, then do option 3 please :-), option 1 or 2 is not good without the other. x.

  10. JamesB says:

    p.s. Plus, if you close all these other loopholes avoiding your law, people may well do religious law or move abroad. Legislation for the bedroom is well dodgy.

  11. JamesB says:

    The Widgery commission, Hillsborough etc. I am not sure people in this country trust lawyers to regulate their relationships.

  12. JamesB says:

    The Law stitches someone-up every minute.
    That said, we would be nowhere without the law.
    We need better law, fairly applied. Family law as it stands is an Absolute Disgrace.
    I just pursuaded my cousin not to divorce her husband on UB also, it’s a disgraceful state of affairs. Advised her to use adultary, even though there had been none, or 2 years separation with consent, instead, they are just as false and less likely to provoke.

  13. JamesB says:

    That was one example, I could give many more but will leave it there.

  14. Chris Stringer says:

    Hi,
    I have a ‘panic’ query.
    When my husband and I divorced I had already given up working due to health problems. The order for maintenance was ‘for life’. My former husband does not suffer from any financial hardship. I can understand that it seems unfair to some people, but is this order likely to remain in place, or could it be changed with any changes in the law?
    Chris.

  15. Marilyn Stowe says:

    Dear Chris,
    Please dont panic. The court makes a life time order because it is satisfied that on the facts, a spouse is entitled to such an order. If a clean break could be afforded or the court feels a term order is appropriate, then the court would order differently.
    There is going to be no immediate and dramatic change of the law. The consultation is just that and it is intended for people’s comments. Those who have financial needs are still going to have them met. So please dont worry.
    Best wishes
    Marilyn

  16. Chris Stringer says:

    Once again, thank you so much Marilyn!

  17. Judy Park says:

    I know you have strong feelings about mediation as practiced by non-lawyers and I understand and respect them.
    Mediation is a stand alone profession and there is no pre requisite to be a lawyer.
    Mediators come from many backgrounds – teaching, law, CAFCASS, counselling, psychotherpay, NHS etc. What we all share is our core training in mediation skills which includes Legal Knowledge.
    We remain impartial and support and facilitate our clients to make their own decisions about their children’s arrangements and financial issues. However we expect them to retain their solicitors in order that they can take advice throughout the process.
    This will become much more difficult for clients in the future who will not be able to gain access to the necessary legal advice.
    So……if your thoughts are that mediation should always be conducted by lawyer mediators who will be acting more like arbitrators – (guiding and coaching both clients) then we are looking at a whole new profession!
    On Tuesday I will be lucky enough to be in the presence of Professor Robert Emery who will be presenting the results of his fascinating study into mediation versus litigation and the long term effects on the children involved. I hope to be inspired.

  18. Kimberly says:

    Please can anyone help this question? Will this consultation have any influence to financial cases that have not been decided by the Court or in the process of appeal? Can someone get back on the bus and be driven to somewhere that is a fair destination?

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