Flexibility versus certainty

One of the problems inherent in a divorce is a lack of certainty about the outcome. I often say to my clients that in a divorce, dividing the parties’ income and assets between them is much more of an art than it is a science.

I often illustrate my advice with a description of a spectrum of possible outcomes. I hold my hands in the air about 4 feet apart and I waggle my left hand and say “Over here is an outcome which is far too generous to the husband”. I then waggle my right hand and then say “And over here is a result which is far too generous to the wife”. I then move my hands in once towards each other until they are about a foot apart. This, I tell the client, is the part of the spectrum where the court is likely to make an order.

When I was a lot younger and far less experienced, I used to describe this part of the spectrum as a “zone of reasonableness”, but I stopped doing that because, frankly, it sounded stupid. However, I still emphasise to the clients that there is no easily identifiable point in this zone where there is a single correct outcome. Depending on the circumstances, the court may make an order anywhere in this area.

In a divorce, the court has considerable discretion about how it can divide a couple’s income and assets between them. It has to follow the statutory factors set out in section 25 of the Matrimonial Causes Act 1973, and therefore, the court’s likely orders should all be roughly in the same territory, but they will not be exactly the same. A lot will depend on the precise circumstances of the case, and also which judge is dealing with it and the weight that he or she attached to a particular factor. Ultimately, all of the circumstances are taken into account and no two cases are exactly the same. The advice of the solicitors and barristers used by the husband and wife will influence where the parties find themselves. Put three different lawyers in a room together and you will probably get three different opinions. This human element means that there is frequently a lack of certainty about what will happen if you go to court.

Of course, most people who divorce do not end up having to make a contested application to the court for a financial order. The vast majority of people who divorce are able to reach an agreement about their finances. However, it is essential that even where there is an agreement, the court is asked to make a financial consent order reflecting this agreement. Without an order, no agreement is binding, it cannot be enforced and if there is no clean break order, there is a danger of further financial claims being made by the parties. The court will not simply rubberstamp a consent order; the district judge will exercise his or her mind and apply the law in order to assess whether or not the terms of the order are appropriate. The court has the power to refuse to make an order if it feels that it does not achieve fairness and meet the parties’ needs. It is more likely to do this if one or other party is not legally represented. Therefore, when advising a client, a solicitor must also exercise his or her judgement about what the district judge might do.

This lack of certainty about the court’s approach is inevitably regarded by some people as not being very sensible. The recently announced change in the divorce laws will not involve any change to the way in which financial matters are resolved by the court. There has been a recent attempt to change the law and to inject a greater degree of certainty about the likely outcome in Baroness Deech’s Divorce (Financial Provision) Bill. This failed to make any progress in Parliament and did not become law, nor does it look like it will become law any time soon.

Baroness Deech predicted that the proposed new law would cut costs and court time, and asserted that by introducing a clearer system, fewer matters would need solicitors and ultimately fewer couples will litigate through the court.

If the bill had become law, it would have introduced changes that would have shackled the court’s discretion about how to divide the parties’ assets. It would also have restricted the court’s ability to order spousal maintenance to be paid for a period of more than 5 years unless the court was satisfied there are no other means of making provision and that one party would be likely to suffer serious financial hardship as a result of a clean break being made. The aim of these changes would be to bring an end to the so-called “meal ticket for life” as the tabloids love to call it. These proposals were considered quite controversial by most family lawyers. They do have their supporters (for example leading divorce solicitor Fiona Shackleton, who acted for Paul McCartney in his divorce, is in favour of these changes), but as far as I can see, there was little enthusiasm for them amongst most of the profession. Despite the experience of Graham Mills in this high profile case, where he was ordered to continue to make spousal maintenance payments, long term spousal maintenance orders are rare nowadays.

A more prescriptive approach can involve unfairness. You only have to look at the problems which can be created by the child maintenance formula used the Child Maintenance Service. The formula has the virtue of simplicity. It replaced a much more complex system where I had to use specialist software to calculate child maintenance, with a much more straightforward formula where I can usually calculate child maintenance using a pocket calculator.

However, the formula is controversial in many ways. It ignores the income of the parent with whom the children live. It also ignores the income of the paying parents’ new partner. It provides the paying parent with a discount if that parent has a child living with him, even if that child is not his, and even if the paying parent’s new partner is receiving child maintenance from that child’s father. The formula gives the paying parent a discount if the children spend at least 52 nights per annum with him, but ignores the fact that the parent with care still has to pay the mortgage, council tax and other running costs of the home even when the child is not sleeping there. The child maintenance formula is a blunt instrument, but it does provide certainty.

The advantage of the current system for dividing income and assets in a divorce is that the judge can make a tailor-made order that fits the circumstances of the case as precisely as possible. Therefore, in my view, it is much more likely to result in a just outcome than a more rigid system in which the court’s discretion is restricted.

9 June 2019

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