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The reality of judicial discretion in family law

As I am sure most family lawyers would agree, it is always worth listening to Mr. Justice Mostyn.  Recently the Hong Kong Family Law Association were treated to a speech by him on the subject of judicial discretion, and I wanted to share it with readers of this blog.

For the benefit of non-lawyers, judicial discretion refers to the situation in which the judge can apparently make any one of a range of possible decisions, having regard to the facts of the case. That is not to say that there are no limits upon what the judge can order, just that the decision can be anywhere in between the limits. As Mr Justice Mostyn explains, judicial discretion apparently exists in several areas of family law, but readers of this blog are perhaps likely to come across it in its most obvious form in the realm of financial remedies following divorce, where the judge can (seemingly) divide the assets in any way that he or she sees fit.

But does true judicial discretion exist, or is it just an illusion? Does it simply appear that the judge has full discretion, when they are actually just making a value judgment? Mr Justice Mostyn seeks to answer this question in his speech and concludes that, save in one situation, true judicial discretion does not actually exist in family law.

What, then, is the difference between an exercise of discretion and the formation of a value judgment? Mr Justice Mostyn says this:

“In a true discretionary situation, the court makes its pick from a range of choices none of which can be said to be exclusively right and none of which can be said to be wrong. In an evaluation the court is subjectively weighing concrete (“primary”) facts to determine the right result. If the required decision is a binary choice – a yes/no question – then, I would argue, the exercise is surely evaluative.”

Mr Justice Mostyn then examines how decisions are made in the various areas of family law in which judicial discretion apparently exists. For the purpose of this post, I will refer only to the financial remedies example.

Mr Justice Mostyn divides his argument between two factors that are at play in financial remedies cases: the ‘sharing principle’ (whereby, as a general guide, an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is good reason for doing so), and the needs of the parties.

The application of the sharing principle, argues Mr Justice Mostyn, “is exclusively one of evaluation and there is nothing discretionary about it.” The process is to evaluate what assets of the marriage comprise ‘matrimonial property’ (i.e. essentially property acquired during the marriage), and to divide that property equally. There is no discretion involved.

Consideration of the needs of the parties, however, is the exception referred to above, where there is true judicial discretion. Here, the judge assesses the needs of the parties by reference to a number of factors. However, says Mr Justice Mostyn:

“This is not an “unfettered” or even a broad discretion. It is fettered and narrow. It is a discretion which is regulated by, and subordinated to, rules.”

Why does any of this matter? What difference does it make to those involved in family court proceedings?

Mr Justice Mostyn argues that:

“…most so-called discretionary situations are not in fact discretionary but require instead the formation of value judgments … such a process is fundamentally rules-based. In those situations where a true discretion is to be exercised, again, the process is always subordinated to clear rules and guidelines.

And he goes on:

“In the realm of discretion why do rules matter? The answer is simple. It is so that like cases are treated alike, and so that lawyers can confidently predict the result of a case in order to give good advice about settlement.”

Hmm. I suspect that there will be quite a large proportion of family lawyers who would find this a little difficult to swallow. Throughout my career, the position of most family lawyers attempting to advise clients as to what financial settlement the court is going to order has been to explain that the judge has a discretion as to what order he or she can make, and therefore that makes it very difficult, if not impossible, to say precisely what order they will make. This is not intended to be a ‘cop-out’ by the lawyers, trying to avoid committing themselves to something they will not be able to deliver, but a statement of the reality of the situation.

Having said that, I do think that Mr Justice Mostyn has a point. In many cases the reality is that there is no real discretion – the judge’s decision does simply boil down to a value judgment, constrained by rules and guidelines. Lawyerly thinking along those lines may just make it a little easier to advise clients.

You can read the full speech here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. spinner says:

    “so that lawyers can confidently predict the result of a case in order to give good advice about settlement” – When the people who are meant to be in charge of a system make statements such as this that clearly show they have no clue as to how their system actually operates, it’s time to reform or ideally eliminate their system.

    A clear set of rules is needed so lawyers and everyone else can confidently predict the result of their case and Baroness Deech’s financial provision bill would seem to make a very good start on that path.

  2. John O'Flaherty says:

    Magistrates use of discretionary powers is often not transparent.
    My estranged wife was represented by Counse, I was self represented.
    Recently I was a respondent in a First Application divorce where the Magistrate made an order for No Costs. He repeated unequivocally four times, my order is for “no costs”, this is a family court.
    The magistrate then, in an amendment, subsequent to the closure of the hearing, changed the decision to “costs within the application” £28,000.
    The Magistrate refuses to respond my request for permission to appeal but has given his e-mail address to the Applicants Counsel.
    If the law is seen to be fair then the law must be transparent.
    This was clearly not the case at the First application.

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