I wrote here on Monday about Baroness Deech’s Divorce (Financial Provision) Bill, which aims to reform the law on financial provision following divorce. In that post I mentioned a comment on Twitter by eminent family law QC James Turner, in which he expressed ‘major concerns’ about the Bill. After I wrote that post I saw this further tweet from him about the Bill:
“In my view it is simply awful in many ways – it’s not just a matter of tweaking but of fundamental rewriting (if and insofar as it is really thought possible to achieve anything more appropriate than the present legislation, about which I remain to be convinced).”
Which naturally got me thinking: does the law need reforming at all? Or do we already have the best possible system for determining how financial claims on divorce should be resolved?
I should say at the outset that I’m sure Mr Turner was not being complacent when he wrote that tweet. I’m certain that he does not believe that our present system is perfect and should never be changed. I wouldn’t presume to know his mind, but I think that all he is saying is that the present system is a mature and well-tested system that generally works reasonably well, and that should not be swept away lightly. It should only be replaced if we are quite certain that its replacement represents an improvement.
Obviously before any possible replacement for the present system is considered, we need to first decide exactly what, if anything, is wrong with the present system.
Now, there are many people out there with very strong views about what they think needs to be changed, and it would be quite impossible to set out all of their concerns, However, I think that the following points are the most common (remember that we are talking here about the rules to determine what financial orders a court should make, not the procedure to deal with financial claims):
- Uncertainty. The current system is discretionary, meaning that the judge hearing a case has a wide discretion as to what he or she thinks is a fair and appropriate settlement in the circumstances of that particular case. Whilst this means that the system is capable, in theory at least, of tailoring a settlement that is appropriate to every possible set of circumstances, it does also mean that it can be hard to advise in advance as to exactly how the judge will exercise that discretion, as there are often a wide range of possible outcomes that fall within the ‘band of discretion’. This is a problem for lawyers advising clients, but can obviously be even worse for those litigants without the benefit of legal advice.
- Complexity. Again, a particular problem for litigants in person. Our system may not be that complex on a statutory level, consisting essentially of a checklist of factors for the court to consider in each case. However, it ‘uses’ a large and ever-increasing body of case law to add detail to the statutory guidance. That case law can be extremely complex for lawyers to navigate, and virtually impossible for most litigants in person. There has often been talk over the years of resolving this issue by the introduction of some sort of formula to determine who gets what, but it seems that coming up with a formula that would result in a fair outcome in all cases is an impossible task.
- Inconsistency across the country. Linked to point one above, it is a common complaint that judges exercise their discretion in different ways across the country, meaning that outcomes will vary from one part of the country to the next, something that is obviously undesirable, as all claims should of course be treated in the same way, irrespective of what courts are dealing with them.
- Lastly, there are various specific issues that some complain about. For example, many complain of unfairness towards breadwinners, such as the so-called ‘meal ticket for life’ whereby the breadwinner, usually the husband, could be liable to continue to maintain the other party, potentially for the rest of their life, or the lack of a ‘limitation period’, which allows a party, usually the wife, to ‘come back for more’ many years after the divorce took place.
OK, even if we don’t all agree with all of these issues, I think we can agree that the present system is not perfect. The search for something better is a legitimate task. But perhaps the reason why we have had no substantial change for nearly fifty years (on a statutory level, at least) is that those who formulated the law all those years ago got a lot of things right. Of course, that is not to say that our system is the best in the world (I’m sure family lawyers in other parts of the world would have something to say about such a statement), or the best that can possibly be devised.
But in our search for something better we must be careful not to throw out the baby with the bathwater. We have something that, despite the complaints, works in most cases. It may just be that we cannot come up with anything else that is demonstrably better.