Interview with Jo Miles, Fellow of Trinity College, Cambridge

Published: 17/10/2022 10:50

Professor Jo Miles

Photo credit: Eugenio Polgovsky (1977–2017), Fellow Commoner in the Creative Arts, Trinity College (2015–17).

Jo, thank you for agreeing to be interviewed for the Financial Remedies Journal.

You teach law at Trinity College, Cambridge University – surely one of the best jobs in the world of academia in one of the most beautiful places – tell me about your work.

I’ve been at Trinity and in Cambridge for over 22 years, teaching undergraduate students Criminal and Family Law, and running a popular LLM seminar on Comparative Family Law & Policy with my colleagues Professor Jens Scherpe and Dr Claire Fenton-Glynn. Being a Fellow of a Cambridge college brings some nice perks (especially on the food-front), but also a lot of admin on top of the teaching. Some of that is student-oriented: supporting cohorts going through their degree and beyond, running the undergraduate admissions process, doing outreach with potential applicants. A lot of it is to do with the running of the college – you get caught up on various committees, particularly as a lawyer (and as a woman …). But, especially somewhere as big as Trinity, it’s all fascinating stuff. Then there are all the obligations that you have to your faculty, and I’ve held a few posts in the Faculty of Law over the years that have meant a lot more admin! And then, of course, there’s all the research and writing, in relation to which I have complete autonomy. But yes, the place is beautiful, and you never get tired of the vistas. The gardens at Trinity are a real joy and one of my most enjoyable duties has been service on the Garden Committee (not only because we get fruit cake at our biannual meetings).

You have established yourself in recent years as one of the leading academics in financial remedies law – was this always your main interest and how did you come to specialise in this subject?

By accident! I began my teaching career at Christ Church in Oxford and it was only after I’d got the job that I thought to ask them what they actually wanted me to teach. The answer, for the first term, was Crime and Family (they added another four subjects to the list over the years … !). So I was teaching Family from the outset. Then not long after I moved to Cambridge, White came out and I was invited to write the case note for the Cambridge Law Journal. That was the first time I’d thought properly about ancillary relief (as it then was), and the interest built from there. I had a sabbatical in New Zealand just after they’d updated their relationship property law in 2002, which they’d extended to de factos (cohabitants), and did some serious thinking then about the principles that might underpin financial remedies/property division on relationship breakdown. Thanks to one of my first Oxford students, the brilliant Deepak Nagpal (now QC – my first student to take silk!), some of my work from that project made its way to the House of Lords in Miller, McFarlane. Meanwhile, I was seconded to the Law Commission to work on its Cohabitation project, which was a fascinating experience. It taught me lots of things, not least that being an academic is easy: you just get to chuck stones at the efforts of everyone who’s having to build stuff (whether that’s case-law or legislation). Actually having to start with a blank sheet of paper and come up with a whole scheme, within all sorts of constraints, is jolly hard! All of that then set me up for the rest of my career.

Of what achievements in the academic world are you most proud?

In terms of research and publications, it’s been a mix of what I’d call ‘proper academic’ stuff and then a lot of much more public-facing, policy-oriented, practitioner-related stuff. The ‘proper academic’ stuff involves writing books (my co-authored OUP textbook – Family Law: Text, Cases, and Materials – is going into its 5th edition next year) and articles, doing empirical research, curating interesting, edited collections, most recently on the life and times of the now-gone 1969 divorce reforms. As for the other stuff, I’ve been incredibly lucky to have a lot of opportunities to contribute out there in the real world – notably for the Family Justice Council (the financial needs guidance, including the LIP guide with AdviceNow) and the Pensions Advisory Group (PAG), as well as consulting on some leading cases as they’ve worked their way through the appellate system. It’s hard to pick a highlight, but high up the list has to be getting involved more or less directly in the recent divorce reforms – consulting for Mr Owens’ team, led by the serene Nigel Dyer QC, in the Supreme Court (a case that it was essential to win in order to get legislative reform), advising on Liz Trinder’s vital research project, and being involved in Ministry of Justice discussions on the shape of the reform. But the academic world consists of other things too, and supporting generations of students through the ups and downs (including some quite deep ‘downs’) of their university lives has been very rewarding.

You have been given credit as one of the founders of the Financial Remedies Court (FRC) – what reflections do you have on this development?

As PAG members will know, some of the best ideas are had in court building lifts. And so it was that you and I started chatting about the concept of a specialist financial remedy unit within the Family Court in a lift (fortunately, not a stuck lift) in the Birmingham Civil Justice Centre on our way out of a meeting with District Judges to road-test the financial needs judicial guidance that we were involved in drafting at the time. (Special mention to Philip Marshall QC, #QCInTheGarden/#QCOnATrain who did most of the heavy-lifting on that!) I don’t think I’d realised before then that District Judges weren’t ticketed for money work, and I was pretty shocked – it’s really specialist stuff, even before we get to the scary topic of pensions! Having seen the consent order approval process from the inside (as an empirical researcher), I don’t know how anyone can decide these cases without a really firm grasp of the area of the sort that only professional experience and/or specialist training can give you – and my research interviews with practitioners have revealed worries about the effectiveness of FDRs in front of non-specialists … It’s for others to judge how well the FRC is working (and I know that the initial proposal ruffled some feathers), but I hope that people agree that it’s a positive and necessary development.

From the perspective of an independent academic, how could the world of financial remedies be improved?

Not by adopting Baroness Deech’s Bill, which I think adopts quite the wrong policy and is not grounded in a solid understanding of the data about women’s economic lives and the impact of parenthood. But I do agree with Baroness Deech that increased certainty about potential outcomes in financial remedy cases would be helpful, particularly in our post-LASPO world where more people are having to navigate these cases without full-service (or any) legal advice and assistance. One big tension in our financial remedies law post-Miller, McFarlane has been between those who embrace the broad discretion that our system can be understood to afford and those (like me) who prefer to foreground the clear set of principles that underpins (or should underpin) outcomes reached and that therefore structure the discretion. This could be taken somewhat further – as the Canadians have done with their Spousal Support Advisory Guidelines. There was a huge amount of interest in these when, right at the end of the consultation period for the Law Commission’s financial needs project, Professor Carol Rogerson (Toronto, one of the scheme’s architects) gave a presentation on their guidelines at an event in the Inner Temple. Sure, the Canadian context is different – not least as they have a sort of deferred community of property, to which spousal support is an add-on, but I think that the example remains relevant to us. It would be good to see the Law Commission’s hope that work be done on this in the English context come to fruition.

Do wives get a fair deal in financial remedies cases?

What do you mean by ‘fair’? We need to be circumspect here. We simply don’t know – and have no easy way of knowing – what is happening in about two-thirds of divorces, as we can see from court statistics that only a third of divorces gets any money order at all. What is happening to the other two-thirds? Are these just cases where there’s nothing to divvy up at all? (Though, as Mr Vince is painfully aware, getting that ‘dismiss all claims’ order is a very good piece of housekeeping!) Are they cases where one party has the upper-hand and can just dictate the outcome? A new project led by my colleague Professor Emma Hitchings (Bristol) – the Fair Shares Project @shares_fair – is going to try to get a handle on at least some of that. As for the third who are getting orders – we mustn’t draw conclusions from reported cases, which are almost invariably ‘big money’ (or at least bigger money). Wives getting 50% of a big slab of capital accrued during the marriage seems fair to me – ‘fairness’ here means sharing the fruits of the joint partnership on which they embarked on marrying. (I was disappointed that the Court of Appeal in Work v Gray, on which I worked with Tim Bishop QC, didn’t take the opportunity to slam shut the ‘stellar contributions’ door … ) But what of the vast majority (of that third), the ‘everyday’ cases, which are rarely reported? Here, the right measure of ‘fairness’ is whether needs, certainly needs generated by the marriage, are being met (which equal sharing won’t do in a lot of cases) – and the pain necessarily attendant on the fact of limited resources shared. My big research study with Emma based on analysis of 400 court files found very few periodical payment orders, even in cases involving dependent children, and not many pension sharing orders. One of the big take-away points from that project, which the FRC has acted on to some extent, is that Form D81 as was really doesn’t give you enough information about the parties’ finances to be confident that the order as approved is fair. Our practitioner interviews underscored many wives’ preference for a house-for-pension swap clean-break outcome. But I worry, as some of our interviewees did, that wives who do that may come to regret that choice later on. Analysis of data from our big household panel surveys (particularly by economists Hamish Low, Oxford, and Hayley Fisher, Sydney) shows that women’s standard of living drops following divorce while men’s improves. Depressingly, those data also show that women’s best hope of economic recovery is through repartnering – but that is harder for older women and mothers. And then Professor Debora Price’s hugely important work, recently with Dr Jennifer Buckley (Manchester), has shown how far behind wives are when it comes to pension saving – and how often the pensions are more valuable than the property wealth at stake (certainly outside London/the south east). So I think there’s work to be done on ensuring that outcomes really are fair for more wives – and on countering the inevitable resistance that will come from those on the other side of the equation.

In the interests of balance, I should ask whether husbands get a fair deal in financial remedies cases?

To the extent that wives aren’t getting a fair deal (see above), then no! Because it’s not fair for husbands to walk away with more than they ‘should’, given the applicable principles. It’s really important to grasp the immense value to husbands of their intact earning capacity (often boosted to the extent that they were freed of domestic responsibilities during the marriage, and still after divorce) and their continuing ability to save into pensions (including to replenish funds that have been shared). To be clear, I’m not saying that earning and saving capacity are assets that should be shared – but nor should they be ignored (see s?25(2)(a)!) when evaluating the parties’ respective positions at the point of divorce and thinking about how to divvy up the assets (and whether to make income provision). Otherwise, we aren’t giving the ex-spouses a genuinely ‘equal start on the road to independent living’, as Lady Hale would put it.

You were a leading member of the PAG – what effect do you think PAG has had and what else needs to be improved in the world of pensions on divorce?

I hope a very positive one. We learned during the course of the project just how much practitioners (and judges) felt the need for guidance in this arena – it really does seem to be the scariest part of financial remedies practice, and for good reason. For those who might have been reluctant to take new guidance on board, it has been particularly useful to be able to say that offsetting cases are the biggest generators of professional negligence cases against solicitors … But I think at least as important is ensuring that the parties themselves – especially wives – appreciate the importance of pensions and the necessity of their being brought properly into account on divorce. And in a needs case that means the whole pension fund – not just that bit accrued during the marriage. So I think it’s been incredibly important that the project, supported by the Nuffield Foundation, has been able to work with AdviceNow/Law for Life and others to produce a pensions guide for divorcing couples and a really good short infographic animation (big thanks to Debbie Price for leading on that) to help people understand why this matters. Until we break through that psychological wall and get wives to take pensions seriously (and get husbands to accept that their pensions are not ‘off-limits’), I fear we won’t make the progress needed to ensure that wives in the everyday cases really are getting fair deals. The whole PAG team was excellent – it was the most intellectually stimulating project I’ve been involved in (really not knowing very much about pensions at the start!) – but we owe a huge debt to Hilary Woodward, whose research with Mark Sefton and then with Rhys Taylor kicked this whole thing off. PAG #2 is now underway (I’m not involved in that, given my impending move), reviewing and revising the original guidance in light of feedback from experience with it so far. And, of course, we now have the Galbraith Tables, which really could be a game-changer for offsetting cases.

Do you think lawyers’ costs in financial remedies cases have got out of hand? How would you improve this?

As with financial remedies law/cases generally, it’s so important not to be distracted by a few reported (mostly) big(ger) money cases where, yes, eye-wateringly disproportionate costs appear to have been generated. They are atypical. Most couples spend very much less (both in raw terms and as a percentage of their wealth) on resolving these issues. Of that third who come to court at all, around 70% are simply applying for a consent order, and around 20% will settle their case somewhere along the line. So it’s only a small minority of what is already a minority of divorcing couples who run up the huge costs that can arise from fully litigated cases. And the reasons for that, in my view, have nothing much to do with the substantive law and an awful lot to do with the turbulent emotions and distrust (sometimes, of course, well-founded) that drive these proxy battles. Would a return of Calderbanks help? Others are far better placed than I am to take a view on that. I would just urge, again, that the debate not be dominated by atypical, headline-grabbing cases, and that thought be given to how parties to ‘everyday’ divorces can fund early advice and assistance to help defuse any potential problems arising from legal misinformation/false expectations and set them on a course to a fair outcome. Is it too much to hope that LASPO might one day be repealed…?

If you had full legislative powers for a day and could introduce one reform, what would it be?

Easy: cohabitation reform. Whether or not along the lines of what the Law Commission recommended way back in 2007. Marriage rates are declining, and the extension of civil partnership to opposite-sex couples is no substitute at all for a scheme of financial remedies between those who – for all sorts of reasons – do not formalise their relationships. I could go on at length on this one, but shan’t. Over to Graeme Fraser and the other doggedly persistent campaigners at Resolution! LASPO repeal would be a very, very close second…

Do you ever wish you had become a practising lawyer as opposed to an academic?

No. When I was a kid, I wanted to be a barrister – I remember being very impressed by the dramatisation of the life of Sir Edward Marshall Hall that was on the TV then, with the begowned and bewigged Jonathan Hyde swooping into court as the protagonist. And I was all set to go off to Bar school when I changed my mind during my LLM year and ended up on the academic track instead, sort of by accident (again). I’ve been incredibly lucky over the years to have had several opportunities to contribute to the development of the law and the family justice system, including my involvement in some real cases (with the support of Steve McCrone and the 1 Hare Court team). That’s been plenty to feed my appetite for the glamour of practice (imagined – yes, I know reality is very different …) whilst letting me enjoy the intellectual freedom of academic life. Acquiring some insight into life at the practitioner/judicial coalface has really enriched and informed my academic take on things – so I’m very grateful for all the opportunities have had and the contacts I’ve made across all parts of the profession across the country (essential to avoid falling into a London-centric trap). Hopefully, it has helped mitigate any ivory tower problems …

You are shortly to be undergoing a complete career change – tell me how you came by this plan and what you are now planning do? What will you miss? Do you think you might ever return to the law?

Yes, I’m off into the world of horticulture, hopefully to work hands-on in the heritage sector (big garden open to the public sort of thing). I’ve been secretly planning this leap for about 5 years, quietly accumulating a whole new CV of qualifications and practical experience in a lot of wonderful places. I reckon I’ve had a pretty decent quarter century in law, and – while I’m physically fit – I’m keen to enjoy the outdoor life in all its rigours (yes, February is the worst, but the answer is very thick socks). I definitely won’t be returning to the law – so this textbook edition is my last, but with two fabulous co-authors, Professor Rob George (UCL) and Dr Sharon Thompson (Cardiff) continuing the title. What will I miss? Fortunately, I’ve served so long at Trinity that I’ve accumulated some ‘emerita’ rights and privileges, so will still be able to enjoy some of what college life has to offer – mostly edible. I’ve really enjoyed teaching, but I’m sure that my pedagogical (and research) instincts will find an outlet somewhere in horticulture.

What is your ideal day away from work? How do you like to spend your leisure and holiday time?

At the moment, gardening! Both at home in the garden and on my growing complex of allotment space, and then out and about. I’m at Great Dixter for all of August, which I’m very excited about (Google it if you don’t know why!). That may not be the case after I’ve been gardening professionally for a year … More likely to want to put my feet up. But not reading law. Spending a day with my feet up at Lords, as I will be next week (thanks to NDQC), would definitely be on the list!

What would your ‘desert island’ piece of music, film and book be?

Film is easy: The Muppet Christmas Carol – surely the best film of all time. Book: am I allowed to cheat, and have a massive, necessarily multi-volume anthology of Golden Age crime fiction? Must include Allingham, Christie, Marsh and Sayers, ideally all of each. Music is the hardest! I’ve done a lot of singing in my time. Emma Kirkby is one of my singing heroines, so any of her recordings would suit me fine. I like a bit of Handel and there’s a gorgeous aria in Acis and Galatea that I could happily sing along to on a loop. But then I do also have a fantasy alternative career in musical theatre, for which reason I must have the National Theatre 2002 cast recording of Anything Goes too, please.

As they say on Desert Island Discs, they shall all be yours. Thank you for talking with us.1

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