A Reply to Baroness Deech’s Argument for Reform

Published: 01/07/2024 07:00

Conceived as a companion piece to Baroness Deech’s article calling for reform of s 25(2) MCA 1973,1 it soon became clear that writing this was a harder task than I envisaged. That is not because the article is not well written, researched or persuasive. My difficulties were two-fold and circular. Given that I am probably one of those self-interested barristers so denounced in the article,2 my first problem was whether my bona fides would hold up. Secondly, in my opinion, there is little substance to the case for reform advanced. But then I would say that, wouldn’t I? My problem was therefore how to convey that without a line-by-line take down of a 3,000-word article, which would likely be both dull to the reader and considered impolite.

Problem 1 – my bona fides

Do I have self-interest in separating parties’ instructing lawyers to resolve financial issues at the end of their relationship? Yes, I do. That is my job.

But do I have self-interest in preserving a system which, according to the article, is unfair and arguably contravenes the rule of law? Of course not. Like every other barrister I know, I became a barrister because I want fairness and justice to prevail. If change is required to achieve fairness and justice then sign me up.

The reality is that my professional interests would in fact best be served by a radical overhaul of the entire legal basis of the area of law in which I practise, as is proposed. That would keep my younger colleagues in chambers busy well beyond my own retirement and, just as the law was settling down, statute would have to be changed again to reflect the societal norms then prevailing (which, according to the article, is the purpose of the reforms proposed now).

I now have almost 30 years’ experience of financial remedies work, be it in one capacity or another. I work for very rich people who have paid me very well and I work free of charge for people with no money at all.3 My practice has encompassed legal aid and private work both as a solicitor and a barrister, over a wide geographical area, at every level of court from the magistrates to the Supreme Court and involving assets from the few to the plenty.

Hoping all of this resolves the first problem, let us now turn to the theory.

Problem 2 – the theory

The ill to be cured

The ill that Baroness Deech seeks to cure is the asserted unpredictability of outcome in financial remedy cases. It is said this arises from the exercise of judicial discretion which ‘has led to unpredictability and conflicting decisions’ and ‘which bears little resemblance to the statute’. The consequence of that, the theory goes, is increased fees for those who can afford to pay lawyers and confusion for those of modest means who would have previously qualified for legal aid but are now forced to act in person.

The cure

It is argued that the remedy to cure this ill is statutory change: to repeal the statutory criteria set out in s 25(2) MCA 1973 and replace them with another set of statutory criteria as set out in the seven sections of the proposed Divorce (Financial Provision) Bill referenced in the article4 (‘the Bill’).

The intended consequences of reform

It would appear from the article that there are three main intended consequences of reform: predictability of outcome; a consequential reduction in costs spent in financial remedy cases; and a necessary feminist repositioning of women as equal partners to a marriage. Let us look at each of those in turn.

(1) Predictability

There is of course a world of difference between what is described as ‘unpredictability’ and flexibility and it would be a mistake to confuse the two. In GW v RW5 Nicholas Mostyn QC (as he then was) said ‘the law in this area is not moribund but must move to reflect changing social values’. The important developments in the law relating to financial provision – White6 (outlawing gender discrimination); Miller; McFarlane7 (sharing, needs, compensation); Radmacher8 (pre-nuptial agreements); GW v RW (cohabitation moving seamlessly to marriage) – have all been decided to reflect changing societal norms and against the backdrop of s 25(2) MCA 1973.

‘We are the original common law jurisdiction based on discretion, fairness criteria and flexible judge led law’.9 If judicial discretion is the enemy of predictability – as argued in the article – it is not clear to me how the Bill intends to circumvent this.

In fact, what is clear on my reading of the Bill is that the new statutory criteria would require judges to continue to make all sorts of decisions in the event of a dispute. This would include deciding what is ‘matrimonial property’ for sharing purposes; deciding the extent to which mingling affects the sharing of otherwise non-matrimonial assets; deciding whether the cost of determining those issues is proportionate; deciding whether there are any relevant factors relating to conduct or contributions or the needs of children under the age of 21 which would affect the outcome; deciding the validity and enforceability of any nuptial agreement; et cetera, et cetera, et cetera.

All of which sounds very familiar.

In any event and by way of challenge to the essential premise, is it right to say that outcomes in financial remedy cases are presently unpredictable?

In his ?‘The Financial Remedies Court: The Road Ahead’,10 Peel J said that:

‘I firmly believe that financial remedies law is not, or should not be, as complex as sometimes it is made out to be. Dare I suggest that the law, centred on familiar principles of sharing and (most commonly) needs, within the overarching section 25 matrix, is reasonably settled. The vast majority of cases, dealt with by specialist judges, can be dispatched relatively swiftly.’

In my experience, specialist financial remedy practitioners may from time to time be disappointed with the outcome of a contested financial remedy matter, but cases in which the outcome is not one which could have been predicted are, in reality, few and far between.

That is exactly why financial dispute resolution hearings are so successful. Whether via a private FDR conducted by a specialist financial remedy practitioner or a court-led FDR conducted by a financial remedies judge, parties to a financial remedy case will, in the ordinary course of events, receive a clear, objective indication of likely outcome and how settlement might be achieved.

(2) Costs

In any jurisdiction, there will always be people who want to litigate cases and spend a lot of money doing so. It is unfair to blame the lawyers for this.

I can do no better than to quote from Baroness Hale in the interview published in this issue of the Financial Remedies Journal11 about resolving financial remedies cases:

‘of course it does need both goodwill and common sense on both sides. And the thing about family cases is that people’s emotions are involved, people’s self-esteem is involved. And they also have their own ideas about what’s fair … which are governed by all sorts of things in their personalities and backgrounds. And that makes it hard for some people to accept what one hopes is sensible advice about how the case should be settled. There used to be a perception that family lawyers wanted to fight cases and I think there are probably people who still think that’s the case but most of the research that goes into what solicitors do suggests that they are very settlement focused.’

I respectfully suggest that a change in statute law would have little or no effect on those litigants who want to fight. We will be simply creating another set of rules for them to fight over.

Furthermore, I struggle to see how creating another set of statutory rules for litigants in person to follow will ease the burden on them trying to navigate the system. Unless the government of the day reverses its decades-long trend of dismantling legal aid, the legal profession will no doubt continue to step up and do its best to serve those who cannot afford legal fees. We will continue to support Advocate, the pro bono charity, we will continue to volunteer at law centres, we will continue to train others to volunteer, we will continue do our best to educate through writing papers, speaking at conferences, recording podcasts. At the other end of the spectrum, however, we will continue to be settlement-focussed, ensuring that only the most complex cases litigate.

(3) A feminist repositioning of women as equal partners

The theory goes that, in England and Wales, we are entirely out of step in failing to address the ‘principle addressed by other countries, namely, ending the status of the ex-wife (usually) as a supplicant asking for her needs to be met by her ex-husband, and turn instead to treating her as an equal partner in the venture of marriage’.

As a consequence, the clear message being sent by our lawmakers is ‘that the best that a woman can do is attach herself to a man and count on him for support for all time.’

If that is the message being sent, then no one is paying attention because that it is not something I recognise from my own practice. Spousal periodical payments orders are becoming rare (joint lives orders rarer still) and will be ordered only in those cases where needs require it (as would be the case in the new Bill), where there is insufficient capital from which to meet those needs (ditto) and anything other than a term order has to be justified (ditto). This is clear from the Nuffield Foundation’s Fair Shares Report,12 which debunks a number of myths about the prevalence of orders for spousal periodical payments. All the new Bill adds is an arbitrary cut off after 5 years, and even that is extendable.

Further, I am afraid the ‘Bill as feminist revolution’ theory rather falls down for me when the article suggests that ongoing, post-separation PPs are unnecessary because wives are ‘rewarded’ enough every day of the marriage for their contribution towards housework and childcare, with their husbands paying for their housing, clothing and holidays. Moreover, it is argued, the ‘rewards’ are regressive: the wife of a rich man probably does even less around the house or by way of looking after children, but will receive more ‘reward’ during the marriage than the wife of a poor man.

For the avoidance of any doubt, I reject as illogical the argument that, in objecting to that transactional and utterly outdated view of marital partnerships I am, according to the article, a ‘neo-feminist … chipping away unthinkingly at the grounds of women’s equal standing’. On the contrary, I subscribe to the view that there is no room for gender discrimination when resolving financial remedy claims and that (as set out below) if either spouse is disadvantaged financially by choices made during a marriage, there ought to be sufficient flexibility built into the system to ensure a levelling up when that marriage comes to an end.

Is reform necessary at all?

I await with interest the scoping report which is currently being drafted by the Law Commission and which is due for publication this November. I have been impressed by the diligence with which those involved in that project have sought the views of those working on the front line and have confidence that, if they consider reform is necessary, the basis for that conclusion will be more than rhetoric and soundbites.

My views are probably clear. I do not agree that repealing s 25(2) MCA 1973 and replacing it with the Bill would do anything other than create confusion for everyone involved in financial remedies work and substantially more work for lawyers.

Life is not straightforward. Relationships are painted not by numbers, but by what happens to us and the choices we make during the currency of those relationships. We have children, we look after dependent relatives. We work part time or perhaps give up paid work altogether to look after the family and support a partner’s goals. We become ill. We are made redundant. Our current law has sufficient flexibility to allow for these circumstances to be reflected in the final outcome.

It is also sufficiently flexible to change with the times, for example to reflect our increasing awareness of coercive control and the impact of domestic abuse upon victims and their families.

However, I do believe we can tinker with the process. It is recognised by those of us involved in financial remedy work that most divorcing couples want to resolve their finances upon separation swiftly and with the confidence that they are getting a fair deal. The natural and judicial evolution of procedural rules have been welcome steps in the right direction.

Using the accelerated procedure for First Appointments gets a case to an FDR sooner; a private FDR might get parties there sooner still, and on a date they choose. The current MOJ proposal to pilot a fast track FDR system for low value cases will further assist those without the means to pay for lawyers to obtain an indication from a financial remedies judge of the Family Court at an earlier opportunity. An increasing and impressive number of financial remedies judgments which explain how judges make their decisions are now being reported, from courts of all levels involving a wide range of values, and are accessible to the public online and free of charge on The National Archives.

In my opinion, supporting these kinds of initiatives, as well as encouraging the use of non-court dispute resolution, would be much more useful than suggesting we rip everything up and start again.

©2023 Class Legal classlegal.com
Class Legal


Share this

    Most read