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Obligations, Responsibilities and the One-Liner

The law in England and Wales is under scrutiny and may well be changed. There are discussions about the extent to which the welfare of children should be the primary or paramount consideration. Whatever we might think of that, do we not need to look again at obligations and responsibilities?

My father was the king of the one-liners. ‘Steve,’ he once said, when faced with an unwanted visit by unwanted in-laws, ‘other people’s families are like fish – nice when they are fresh, but after three days they stink.’ He then disappeared behind some Pampas grass in the garden to read *Contes choisis* – Guy de Maupassant, only emerging after they had left.
He would be disappointed in me. I can only do a one-liner on the subject of this article by posing a question: ‘Whatever happened to obligations and responsibilities?’ But, honouring that style, I will keep this short.
Those two words – obligations and responsibilities – have featured in the statutory checklist for at least 56 years – see s 5(1)(b) of the Matrimonial Proceedings and Property Act 1970 and now s 25(2)(b) of the Matrimonial Causes Act 1973. Having just spent a week working with exceptional lawyers in Bermuda, I know that they are words which feature within the statutory codes of other jurisdictions – see s 29(1)(b) of the Matrimonial Causes Act 1974 (Bda).
I have trawled the law reports. I cannot find any case where there has been any focused consideration of those two, distinct, statutory concepts. They are words which, on my research, have only featured when, to pad it out, someone has cut and pasted the whole of the section into a judgment. If anyone reading this article can put me right, please contact me and put me out of my misery. However, as far as I can see, every other concept within the statutory checklist has received copious consideration. These two have just been sidelined.
Obligations and responsibilities remain important and distinct features of the statutory code. They are not consumed by other words in the section. They are not just verbiage – they are there for a reason. Their state of tatty neglect cannot find justification in the desire to shy away from moral judgment; they do not invoke moral judgment, any more than ‘needs’ do. Rather, they invoke evaluation and fairness. For instance, responsibility includes parental responsibility and we are used to evaluating that.
Needs may be ‘elastic’; however, they are entirely different to obligations and responsibilities. Thank you, James Pirrie, for the steer – you and my father would have got on well. As James put it: ‘Needs are inward facing, whereas obligations and responsibilities are outward facing’. A person asserting a need is saying: ‘this is what I need from my ex / the matrimonial pot.’ A person asserting an obligation /responsibility is saying: ‘these are the obligations and responsibilities that we have to each other, and to others’. Obvious examples would be children or a dependant relative or a dependent former spouse.
The bane of this area of law, I would suggest, has been the introduction of extra-statutory concepts that confound the analysis of fairness, rather than assist it. Examples are reasonable requirements, special contributions and compensation. Compensation, if it is anything, is surely no more than a small slice of the much bigger cake that is created by obligations and responsibilities. If my wife gives up her career to look after the children, why should that create a greater responsibility than that which I would owe if she did not have a high-flying career in the first place?
Although, in this troubled world, the Clapham omnibus test may not be as safe or consistent as it was once thought to be, would not obligations and responsibilities feature very highly in any everyday analysis of what is fair on divorce or separation? And, in any event, what is the justification for ignoring statutory wording?
Does it matter that the statutory wording has been ignored? Yes. It matters as much as if we sidelined other statutory factors.
The law in England and Wales is under scrutiny and may well be changed. There are discussions about the extent to which the welfare of children should be the primary or paramount consideration. Whatever we might think of that, do we not need to look again at obligations and responsibilities?
Once, when at my wits’ end, I went to speak to my father. He listened intently and then said: ‘Son, keep your powder dry.’ That was all. Probably the best advice I have ever had. Perhaps I should have done that on this issue, too.