Last Friday the Family Justice Council published its Guidance on “Financial Needs” on Divorce. As the President of the Family Division Sir James Munby stated in his foreword to the Guidance, it “is intended as a useful tool for the judiciary in relation to the making of orders to meet financial needs following divorce and the dissolution of civil partnerships.” In particular, the Guidance is aimed at addressing the “unacceptable regional disparities” in the application of the law relating to financial needs on divorce by judges around the country.
But isn’t it a little odd that it is considered necessary to provide our judges with such guidance? Surely, our judges should already be experts at family law, and should not therefore require any additional guidance? After all, the Guidance essentially only goes over the existing law, which our judges must already know, mustn’t they?
Well, I’m absolutely certain that there will be very little in the Guidance that a good, experienced, family court judge does not already know. The problem, however, is that we operate a judicial system whereby many of the judges dispensing family justice are not family law experts. Many of them have never practised in family law in their lives. I suspect that this fact may come as something of a shock to the general public, who are surely entitled to expect their judges to know what they are doing. Of course, it is perfectly possible to be a good family law judge without having practised family law previously, but it means a pretty severe learning curve, as not only is there a good deal of law to learn, but the approach required in family cases is also quite different from other areas of law.
There is also something else. The basis of our law on financial remedies following divorce is set out in statute (written law). Now, I know that any statute is open to interpretation, but surely a well thought-out law and a well-drafted statute will obviate the requirement for guidance upon such a basic and crucial issue as needs? Or, to put it another way, if there is a requirement for such guidance, shouldn’t it be for Parliament to amend and clarify the law, rather than for an advisory public body such as the Family Justice Council to provide the guidance?
What I am saying is that the law is in need of reform. Rather than patching up the existing hotchpotch of statute, rules, practice directions and case law with yet another piece of guidance, what we really need is a decent new law that is clear and that stands up by itself, without the requirement of additional guidance.
And then there is the issue of regional variations in interpretation of the law, as identified by the Law Commission in its Matrimonial Property, Needs and Agreements project back in 2014, to which the Guidance owes its origin. Again, if we had a clear system of law, operated solely by expert judges, then there simply wouldn’t be any regional discrepancies. Once more, I’m sure the public would be appalled if they found out that what they are likely to get from a court may be determined by whereabouts in the country that court is located.
Look, don’t get me wrong. I’m not saying that the Guidance is bad, or that it is a bad idea (it could be pretty useful for practitioners, as well as judges, particularly those new to family law work). I’m just saying that it is strange, and perhaps slightly disappointing, that we have a system in which such guidance is considered necessary.
The Guidance can be found here.