I had been a Barrister for a little while before I really believe I became a true lawyer. That moment came when faced with a client’s case which had injustice written all over it, but my research of the law books with which I was familiar, provided no answer or remedy.
My upbringing had been in a working class family without any wealth in money terms, but with the real values instilled in me that everyone was entitled to a chance in life and justice was for all.
That day I determined to follow my gut instinct that there had to be a just remedy for this person’s predicament and on a campaign to find it, I poured over the case law behind the law books summaries of what had been decided over this issue. The reward was to discover, the summaries did not in this instance provide the full story and the law did indeed provide a remedy in line with what my gut said should be the law – it was all a matter of interpretation.
Since that day I have never just accepted what I have read or been told is the position over something important – if my gut instinct is that something is unfair – then there must be a remedy and almost always there is.
Why am I am I mentioning this? Well I have more experience of divorce financial law than most around and I am aware, as many of my colleagues will be, that there remain a number of areas in our country’s matrimonial law which are simply unjust and unfair.
One which I come across regularly on almost a weekly basis is the discrimination actively exercised by the law against wives who, without any possibility now of gaining what used to be called legal aid, are being denied access to their own money and resources to fight their divorce case for a fair financial settlement from their husbands. Their husbands in the meantime because they have historically in many of the mature marriages controlled the finances or held the marriage assets in their sole name are able to freely fund their lawyers to fight their wife’s claims.
The result in many a case is that the woman already stressed by the breakdown of the marriage, the daily care in many such cases of the children and the concern in seeing her meagre savings, if she has any, falling away rapidly with the initial legal bills, becomes overwhelmed and bullied into accepting a poor settlement from a controlling husband who pressurises her into this position with often a mixture of temper tantrums and constant belittling of the advice of the lawyer who the wife has been little able to afford to get some assistance from.
The result is invariably a complete injustice to the wife in financial terms. Given that the historical development of our society has within it an in-built discrimination against women attaining positions of landed wealth or commercial influence even to this day, then the present approach of our law still continues to perpetuate a discrimination against the ‘womans role’ within marriage generally. For it remains the woman who is the less likely of the spouses to have wealth at the start of a marriage or a developed career and the more likely by the end of the marriage on a divorce, because of responsibilities to child care, to have given up any chance of attaining the same level of income earning potential as her husband.
The law’s response to this situation has in some areas been shameful and the approach adopted to a wife’s access to litigation funding during divorce is a case very much in point.
The heart of this problem returns to a very poor decision of the Court of Appeal in the case of Wicks v Wicks (1996) 1AER 977 where the issue arose whether under the divorce statute (the Matrimonial Causes Act 1973), the Court had the power to award an interim lump sum, usually on the application of the wife before the final resolution of the financial claims in divorce, to fund her legal costs and assist her to re-accommodate after the divorce.
It has to be said that that decision may have had more to do with the personalities of and competition between the members of the court concerned than it had to do with the justice of the situation. It was, as I have already referred to at the outset, in reality all a matter of interpretation of the existing rules – but in this instance justice did not prevail and interim lump sum funding was denied.
With this decision since, some three decades of women have struggled by on litigation loans from institutions on high interest rates or lending from family members to get through the process of paying their lawyers to achieve a just outcome to their financial future after the marriage has ended and where in many cases they retain the responsibility of the children of the family. For many wives the result has been too much and poor decision taking by them as a result has resulted in financial outcomes which have bedevilled their standard of living for many years after.
In this Parliament cannot be absolved from its responsibilities and one wonders if the plight had been one experienced by men in divorce whether there would have been a different and more effective response from Westminster. That is not to say men do not fair badly in other aspects of our family court system, but that is not the subject for debate here.
The Court of Appeal over the last decade, in the absence of the interim funding denied in Wicks, found with the fall in the economy and the developing lack of legal aid assistance to spouses going through divorce that more and more the plight of wives in this area of litigation funding was calling for more and more urgent attention.
In response, in a number of decisions ending with Currey v Currey (2006) EWCA (Civ) 1338, the courts set out a number of criteria which a wife would have to establish before the Court would allow her to add to her claim for maintenance pending suit from the husband before the divorce was finalised an amount to continue to pay her lawyers through to the end judgment on the divorce finances. These entailed the wife having to show first quite naturally that the husband was sitting on funds from which he could pay some over to her for such costs to be paid, second that she could not reasonably be expected to pay such costs from monies or assets she may have retained, third that she could not reasonably borrow the funds from any other be they private or commercial lenders and there was no special legal funding available usually to be secured as a charge on the monies she would recover from a final judgment (known as a Sears Tooth arrangement).
Parliament finally in April last year awoke from its slumber and passed an amendment to the divorce statute to put into place a formal procedure whereby on a set of clear criteria a spouse could apply for legal cost funding during a divorce finance case – known as a ‘legal services payment order’. Much of the new provisions echo the criteria laid down by the Court of Appeal in Currey’s case.
So you may say – job done. Oh don’t you believe it. In fact you would be forgiven for thinking that finally once Parliament had got involved then the law in this area would have been moved on at least to provide a greater remedy and powers of the Court to more readily provide relief to mainly wives for such funding above and beyond the court’s previous approach. If that had not been the case then why had Parliament spent the time in passing the new legislation at all when the courts had already a system of sorts in place.
After all, was this not just a matter of interpretation and was such an application for money in the interim to be paid by the husband not merely an advance instalment of what the wife would be getting of her own money eventually anyway. Indeed, have you not heard now many times in the Press and elsewhere that the law in divorce is all for an equal split of what the parties hold and the court a champion of fairness and non discrimination (White v White (2000) and Miller v Miller and McFarlane v McFarlane (2006)). Should it matter after a marriage has broken down whose name the assets are held in if one party needs access to some of the marital assets to gain the same services as the other to bring or defend the financial claims upon divorce. Is this not called ‘equality of arms’?
Well you’ve guessed it. We lawyers are a conservative bunch. After Parliament spent time on the new legislation, we are now told by the latest decision in BN v MA (2013) EWHC 4250 (fam) on the question of the interpretation of the amendments enabling a legal services order to be obtained that actually Parliament intended to do nothing more than to put in an Act of Parliament only what the courts were already doing anyway – they did not intend to change a jot of what the courts were doing on the question of litigation funding – they simply felt the judges were doing an absolutely splendid job already – and so all Parliament ever intended to do was simply to codify the existing practice.
Of course, these amendments were added to a hotchpotch of reforming measures introduced in the same Bill by Parliament and the information to the legislation gave little away of the intended purpose. What we do know is that the reforms removed the power as just an add on to a maintenance pending suit application and made it a free standing application of its own right. It is certainly clear it was intended to be more flexible than before and to have teeth in that there can now be interim orders for sale of assets to provide the funds in question.
Let us pause a moment. Can it be thought still to be acceptable for a wife without, by accident of marriage, funds in her name to have to show why, unlike the husband, she should not borrow the funds she needs to pay her lawyers and pay an interest rate for doing so? Is it fair that if a wife really thinks she has a basis for a legal services order when the husband tries to turn the pressure up on her by denying her access to the marital funds to pay her lawyers, that then she should have to pay an extra court fee to make the application and go ‘cap in hand’ before a Judge for the money, which she is constantly being told is half hers anyway?
Of course, it all comes down to interpretation and to the mindset of the tribunal interpreting this new legislation. If the starting point was truly that the marital assets are equally earned by the spouses as the law constantly claims then would not each party have entitlement to an equal access to them in a time of need. The fact this is not happening may say more about the court than the litigant in this case.
You may have already detected I am listening to my gut again, instead of what I am being told the law is!
Ashley Murray is one of the most experienced divorce finance specialist barristers in practice. He is a co-author of Cohabitation, Law Practice and Precedents (Jordans) and of numerous articles in Family Law and elsewhere. A Recorder, he has been sitting on private family and criminal cases for over 21 years and last year was uniquely authorised to sit on divorce financial appeals from the district bench.