Chair’s Column (Summer 2023)

Published: 03/07/2023 08:00

A fond farewell to Mostyn J

In this issue of the Financial Remedies Journal (FRJ) we have decided to shine an approving and appreciative light on Mr Justice Mostyn, a great family lawyer and the greatest financial remedies lawyer of our age, who has powerfully dominated this territory for a generation and in so many ways moulded it and influenced it for the better. As he retires from his judicial work in July, we are delighted to include a major and substantial appraisal of his life’s work by Sir James Munby as well as a full and engaging interview conducted by Alexander Chandler KC. Both pieces are commended to the reader wishing to recall the many highlights of this remarkable career. If his wish is to go out at the very top of his game, then the mathematicians amongst us will confirm and rejoice that his very recent judgment in James v Seymour [2023] EWHC 844 (Fam) certainly fits the bill, providing an algebraic formula for the calculation of the payor’s ‘exigible income’ (E) which is defined as E = (G x 91 – Z) – P – (S/0.55) and is then applied to a table to produce the ‘Child Support Starting Point’. Nicholas has said that he intends now to devote his time and efforts to the challenges affecting sufferers of Parkinson’s disease. We shall not be surprised if these efforts achieve similarly remarkable results in that territory. And tennis players amongst us hope there will be some time left for him to continue masterminding his energetic lawyers’ tennis club in Lincoln’s Inn Fields. On behalf of all at the FRJ, we thank him for all he has done for the world of financial remedies and wish him well in his retirement from the bench.

The Law Commission Review of financial remedies law

On 16 March 2020, just before COVID-19 and lockdown descended upon us all, the government gave a written promise to Baroness Deech that (on condition she withdrew some unwelcome amendments to the then Divorce, Dissolution and Separation Bill) there would be a review of financial remedies law in the context of the suggestions she had been advancing in her own Private Members’ Bill (the Divorce (Financial Provision) Bill). This promise appeared to have been lost in the mists of time, but suddenly resurfaced in parliamentary exchanges in the House of Lords on 8 March 2023 and then the announcement on 4 April 2023 by the Law Commission that it would be carrying out the promised review in the months and years ahead. Financial remedies practitioners can properly expect to be fully involved and engaged in this review and we should all welcome the opportunity to stand back and reflect on whether the statutory basis of what we do could be improved, whether in the direction suggested by Baroness Deech or in some other direction. The issues raised go to the heart of the FRJ world, and two articles in this issue are targeted at aspects of this review. Readers’ attention is particularly drawn to the interesting analysis of the law of maintenance by Katherine Dunseath and Elizabeth Darlington, ‘Fairness versus Certainty – Should the Matrimonial Causes Act 1973 be Amended to Restrict the Duration of Spousal Maintenance?’. Would a statutory cap of 5 years’ spousal maintenance ‘begin to resemble structural or institutional sexism’ as Dunseath and Darlington suggest or was Baroness Deech correct to assert, during the Bill’s Second Reading debate, that ‘The majority of women who work feel downgraded and belittled by the alleged helplessness and unreasonable demands made by some’?

The updated Standard Family Orders

I declare an interest as a member of the team which first drafted the money Standard Family Orders (SFOs) launched in 2017 and also the team which has updated them in 2022–23, but I hope it is not an exaggeration to say that these template orders have been almost universally adopted now in financial remedies cases and also that they are widely welcomed and have unquestionably improved the overall clarity and presentation of money orders. To retain their usefulness, they need to be regularly updated and adapted to continuing changes in the world (Brexit, remote hearings, digital working, electronic bundles, Efficiency Statement, ES1 and ES2, etc) and the updated suite of SFOs attempts to take all these changes on board. For more detail on the changes involved in the updating, readers’ attention is drawn to the article by Nicholas Allen KC on this subject. Class Legal’s excellent order drafting programme (available free to judges) has been adapted to utilise the updated SFOs and so drafting an order should be a straightforward process. Sometimes people say to me, ‘Why are the SFOs so long?’, to which my answer is always this: the SFOs are long because they are intended to cover a wide range of scenarios; but the actual order in a particular case does not need to be any longer than it needs to be – deleting unnecessary paragraphs in the Word format should not be unduly time-consuming!

©2023 Class Legal
Class Legal


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