Sacrificing fairness (and a parrot) on the altar of certainty

Family Law|October 29th 2014

I have been looking again at Sir Nicholas Mostyn’s recent speech to a family law conference, the one I mentioned here last Friday. It is an excellent read, and I highly recommend you give it a look if you haven’t done so already.

The speech is entitled “Viva El Loro!” which – if my handy online Spanish to English translator does not deceive me – translates to “Long live the parrot!”

Now why, you may be asking, is a High Court judge interested in the welfare of one of our (admittedly beautiful) feathered friends?

The answer is that it is a reference to the famous (and timeless) Monty Python dead parrot sketch. Or rather it is a reference to Sir Paul Coleridge’s earlier reference to that sketch.

Still with me?

OK, rewind a year and the same conference was addressed by Sir Paul Coleridge. Sir Paul’s speech was entitled “Lobbing a few pebbles in the pond; the funeral of a dead parrot”. The dead parrot, he argued, was the Matrimonial Causes Act 1973 which contains, in particular, our present divorce law and the law relating to sorting out financial settlements following divorce. Sir Paul considered that the Act was no longer fit for purpose, being “designed in a wholly different era to deal with a wholly different society and way of life”.

Sir Nicholas begged to differ with Sir Paul’s views, hence the title of his speech. Referring by way of example to the Equal Pay Act 1970, he argued that a statute does not lose its legal or moral validity simply because of the passage of time.

Sir Nicholas’ argument related not to the divorce provisions of the Matrimonial Causes Act but to the provisions relating to finances following divorce. The Act, as we know, provided the courts with a discretionary system to resolve disputes over finances. A judge considering a financial settlement following divorce can essentially make whatever order they consider to be fair and appropriate, having regard to all the circumstances of the case.

The great advantage of a discretionary system is, of course, that the judge can tailor a settlement to those circumstances. Its big disadvantage, on the other hand, is uncertainty: who can say what that particular judge, on that particular day, will decide? It is primarily that uncertainty that has led to calls for the law to be reformed, for example Baroness Deech’s Divorce (Financial Provision) Bill.

Sir Nicholas, however, argues that the current system is not, in fact, uncertain. Were we to scrutinise a case study today, he says, the overwhelming majority of predicted outcomes would be within a few percentage points of one another. In any event, he goes on: “the system must not sacrifice fairness on the altar of certainty”.

Further to that, Sir Nicholas argued, judges can interpret the concept of ‘fairness’ in accordance with the standards of the time, thereby reducing or eradicating the factor of the law having been passed in a different era, and reducing the need for government to regularly implement change.

Discretion versus certainty is an argument that has been raging as long as I can remember, and certainly for as long as I have been commenting upon family law matters. As I recall, my own views have altered during that time. At one point I could see the allure of a formula-based system, but that could not possibly produce a fair result in every situation. If we then introduce some discretion to deal with the cases where a formula will not achieve a fair result, why not then have a discretionary system for everything?

And so the argument goes round and round. I don’t know the answer, but at least until someone comes up with a system that is clearly better than what we presently have, then I find myself agreeing with Sir Nicholas.

Perhaps there is some life left in that parrot, after all.

Photo by Luc Viatour / www.Lucnix.be via Wikipedia

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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