The Law Commission Scoping Report

This is the first issue of the FRJ since the Law Commission’s ‘scoping report’ was published in December 2024. The essence of a scoping report is that it steps back and paints an overview. It presents options (to the government or to Parliament); but does not seek to recommend or even identify a clear way forward. The downside of this exercise is that it doesn’t really solve anything. Whilst some of the weaknesses of the present system are identified, it also identifies the weaknesses of other alternatives and provides no answers. The usefulness of the exercise, in contrast, is that it draws attention to possible ways forward which can then be further debated in anticipation of a future decision by the government or by Parliament. This issue therefore includes several contributions in this spirit as well as a covering article from the Law Commissioners themselves: ‘Financial Remedies – Next Steps on the Road to Reform?’ by Professor Nicholas Hopkins and other members of his team. Amongst the issues discussed are whether there is a case for leaving things as they are, whether or not ‘conduct’, in particular domestic abuse-type conduct, should be elevated as a factor (see ‘Principles vs Resources: Conduct and the Law Commission Scoping Report’ by Sam Hillas KC et al) and what amendments to the statute would promote the fairer sharing of pensions (see ‘Reflections on the Law Commission’s Scoping Report so far as it Relates to Pension Sharing’ by Jack Rundall). No doubt these debates will continue; but what will the government or Parliament ultimately do (if anything)? We shall have to wait and see, probably for many months.

Arbitral awards

The public policy of encouraging divorcing couples to resolve their differences away from the courts has many strategies. One of them is to promote arbitration – successive Presidents have strongly encouraged its use. The article by Michael Allum – ‘Will Delays in Converting Arbitral Awards into Court Orders Deter the Use of Arbitration?’ – highlights some difficulties that have arisen in the court process since the inception of arbitration which appear to have interfered with the attraction of the process. Munby P in S v S [2014] EWHC 7 (Fam) sought to encourage the court’s rapid approval of arbitral awards. ‘The judge will not need to play the detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award … it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order’. Through a series of reported cases – Haley v Haley [2020] EWCA Civ 1369, A v A [2021] EWHC 1889 (Fam), LT v ZU [2023] EWFC 179 (B) and ON v ON [2024] EWFC 379 – the accelerated pathway envisaged by Munby P a decade ago seems not to have been what was hoped. Michael Allum’s thoughts represent an interesting reflection on the problem and how it might be solved or improved and deserve proper attention.

Duxbury

The final report of the Duxbury Working Party was published in November 2024, just after the print deadline for the Winter issue of the FRJ. The final report therefore appears in full in this issue. The recommendations represent a significant move forward in how these issues are likely to be treated by financial remedies courts in the future and deserve a careful reading by all practitioners in this area.

Obituaries

This issue carries obituaries of two individuals who in their own ways lit up the world of financial remedies – both were engaging company up to their all too early recent deaths and both will be much missed by all who knew them. Issy Plumstead was one of the many individuals who cut their judicial teeth as a District Judge of the Principal Registry of the Family Division and, in many later roles, including as a Circuit Judge, she remained a strong and agreeable presence at many a function and event up to and beyond her retirement. To financial remedies practitioners she can legitimately claim to be the ‘grandmother of pension sharing’ as the first instance judge in Brooks. Likewise, James Turner KC was a considerable and admirable presence for many years right up to his death. He lived and breathed the promotion of justice and fairness, remaining on the front line at the Bar until the very end. I had the honour of hearing what I think may have been his last financial remedies case when, though readily acknowledging his illness, he gave absolutely no quarter in either inventiveness or spirit or hard work in making out his case. The family law world is mourning two of its veteran stars.