Is it time for the financial remedies rules to be simplified and clarified?

Divorce|June 20th 2017

Like, I’m sure, most family lawyers I have spent some time reading the judgment of the Court of Appeal in Sharp v Sharp. It is illuminating, but it left me wondering whether there is a better way to resolve financial disputes following divorce.

For the benefit of those non-lawyers who do not know what the case was about, the Court of Appeal decided that the divorce court could depart from the usual rule that assets should be divided equally, because it was a short childless marriage, both parties worked and they largely kept their finances separate. Accordingly, the wife’s appeal against an order dividing the matrimonial assets equally was allowed.

Sharp was the latest in a long line of judgments by our highest courts, interpreting the rules laid down by parliament to set out how financial remedy cases following divorce should be decided. The judgments now go back nearly fifty years to when those rules were laid down, and include such important cases as White v White, Miller and McFarlane and Charman v Charman, amongst a number of others.

A lay person (or even a law student) may ask: why is it necessary to interpret what parliament said – surely the rules were laid out with sufficient clarity that it is obvious how they should apply? It is a good question. The answer, I think, is twofold. Firstly, any rules are open to a certain degree of interpretation. It is impossible, for example, to come up with a set of rules that are so clear that it is obvious how they should apply to every possible divorce scenario. Secondly, these particular rules were purposely set out to be vague, merely listing a number of factors that the court should take into account when deciding how assets should be split on divorce, but giving little in the way of guidance as to what effect those factors should have, leaving it to the discretion of the judge in each case. Such a system has the benefit of flexibility, so that it should, theoretically at least, be possible to come up with a fair outcome in each case. The downside, however, is that there is much less certainty as to what the outcome should be in a given set of circumstances, hence the need for the higher courts to interpret the rules and thereby provide some guidance.

The problems that can be caused by the lack of certainty were clearly illustrated in Sharp, where a judge as learned and experienced as Sir Peter Singer was able to ‘get it wrong’, coming up with an interpretation of the rules that the Court of Appeal found to be incorrect. If he can get it wrong, what chance the average lawyer or, worse still, the average litigant in person?

Of course, there is nothing unusual about a judge, however learned, having their decision overturned, but still one wonders whether, especially in these days when so many litigants are left to fend for themselves without the benefit of legal advice, there is not a better way. Surely, the rules could be simplified and clarified, so that outcomes are at least more certain and that we do not have to resort to reading a 128-paragraph judgment of the Court of Appeal to find out what should happen in a particular case?

And it wouldn’t be quite so bad if the judgment set out simple guidance. However, the statement of the ‘legal context’ in Sharp, set out by Lord Justice McFarlane in paragraphs 16 to 46 of his judgment can hardly be said to be ‘simple’ (no disrespect to McFarlane LJ). Good luck to any litigant in person trying to extract some guidance from those paragraphs.

The idea of simpler and clearer guidance is nothing new. For example, Resolution, the association of family lawyers, has pressed for it for some time – see section 5 of their ‘Manifesto for Family Law’. The big problem, of course, is: what should the guidance contain? Resolution give some ideas in their Manifesto, and they seem to me to be a good starting-point, although the matter really needs to be fully debated.

I realise that there are other pressing matters, but isn’t it time for that debate to begin?

The full judgment of the Court of Appeal in Sharp v Sharp can be found here.

mage by Bob Peters via Flickr

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  1. spinner says:

    If resolutions solution to financial remedy were implemented that would cut out most of the issues I have with the divorce system which is the uncertainty means the case goes on for a long time which in itself damages everyone involved.

  2. Julian Hawkhead says:

    Another great post John. The problem I had with this judgement and indeed a lot of judgements is that they spend a long time going through the historic case law, as perhaps any legal system based on precedents is bound to do but then just as we get to the climax of the decision making process, a figure is seemingly plucked out of the air by the Lord Justice. Why that figure? Was it, despite the detailed analysis of major family finance cases since 2000, a question of a gut feel decision on what the Judge felt was a fair amount.

    How often do we see cases when we read a judgement and we don’t get to read the thought process going through a Judge’s head when it comes to computing a figure whether it is for capital or more often a maintenance, an analysis of budgetary requirements and what is reasonable and what is not.

    That sort of guidance from courts would make practitioners lives a lot easier.

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