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!