I thought I would finally get around to starting something I have been intending to do for some time: write a series of occasional posts on important family law cases from the past (although whether I persevere with the series will have to remain to be seen).
The case that I am beginning with is one that I remember from my earliest family law studies. Being still quite recent, it was extremely important then and it also had the added cachet of having been decided by the great Lord Denning, who gave the leading (indeed, the only) judgment. It is not, perhaps, so important now, although it still gets a mention in many family law textbooks.
The case I am referring to is Wachtel v Wachtel, decided by the Court of Appeal in 1973. It concerned a husband’s appeal against a financial order following divorce, and it was important because it was the first time that the Court of Appeal had considered the new (and, essentially, still current) regime for deciding financial settlements, following the major reform of the divorce law at the end of the 1960s. At the time the courts across the country were interpreting the new law in inconsistent ways, and the profession sought some guidance as to how it should be applied.
Lord Denning stepped into the breach. In order to keep this post to a reasonable length I will not go into the detail of all the guidance he provided, some of which has anyway been superseded by subsequent law and cases. Instead, I will concentrate on one aspect, which both gives a flavour of the times and is still good law (hence the references in modern textbooks).
Prior to the reforms of the 1960s divorce law was based upon the concept of the ‘matrimonial offence’ – i.e. laying the blame for the breakdown of the marriage firmly at the door of one party, for example because of their cruelty or adultery. This had other consequences than just deciding who was at fault for the divorce, however. As Lord Denning said in his judgment: “If a person was the guilty party in a divorce suit, it went hard with him or her.” In particular, for our purposes, the guilty party could expect to be awarded a far smaller portion of the matrimonial pie in any financial settlement following the divorce.
The question to be decided in Wachtel was: did this principle of ‘guilty party gets less’ still apply under the new regime? After all, parliament had specifically included in the regime a provision stating that when considering a financial settlement following divorce the court should have regard to the conduct of the parties (such a provision still exists – see section 25(2)(g) of the Matrimonial Causes Act 1973).
Lord Denning asked whether this provision meant that the judge had to hear the parties’ “mutual recriminations and to go into their petty squabbles for days on end, as he used to do in the old days?”
He answered in the negative. After all, in most cases both parties were to blame for the breakdown of the marriage. There should be no reduction in the settlement that one spouse should receive because of their supposed misconduct – in the vast majority of cases this would be repugnant to the ‘modern’ principles underlying the new legislation.
The ‘conduct’ provision should only apply in cases where the conduct was “both obvious and gross”, such “that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the Court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered.”
Unless the case falls into this category, “the Court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame.” To do so, said Lord Denning, “would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.” Unlike in criminal cases, the imposition of financial penalties for misbehaviour should seldom find a place in family proceedings.
As I indicated above, all of this has stood the test of time, and quite rightly so. Investigating the reasons for the breakdown of a marriage should not normally be the business of the courts, far less the apportioning of blame, and imposing financial penalties upon those deemed to be at fault is anathema to progressive thinking. Thankfully, Lord Denning was wise enough to see this all those years ago.
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