Thursday, 12 April 2012

When it comes to generosity, I’m with Scrooge – almost!

Judges coin phrases and lawyers seize on them.  They adopt them with the fervour that a devout follower of religion applies to the words of his or her chosen prophet.  They seek to apply them in any given situation.  And often there comes a rude awakening, when another judge dismisses the earlier legal catchphrase and says that it was always misconstrued, misapplied or simply wrong in the first place.

One such phrase, to which I am now completely sensitised, is "needs, generously assessed".  It grates my nerves because I have a view about generosity.  I simply don't see it as being my place in life to be generous with someone else's money!  Equally, I am completely unconvinced that the law empowers any judge to be either.  The phrase first appeared in the notorious Miller and MacFarlane cases back in 2006.  The House of Lords, no less, said that part of the court's job in reaching a fair financial settlement between a husband and wife was to determine the needs of the parties, "generously assessed".

Now it's very basic to say that it's s.25 of the Matrimonial Causes Act 1973 which sets out what the court has to take into account when carrying out the job of crafting a suitable order.  The way the section refers to needs is this, to be exact:

"the financial needs, obligations and responsibilities which each of the parties to the marriage has..."

In other words, there's no mention of generosity!  Now we've seen previous elevations of judicial commentary to almost the status of holy writ (well statutory status anyway) previously.  For example, for 24 years the phrase "reasonable requirements" held sway, following something said in a case called O'D v. O'D in 1976.  The House of Lords killed that phrase in 2000 in the famous and revolutionary case of White v. White.  The Court said, "Confusion might be avoided if courts were to stop using the expression 'reasonable requirements' in these cases..."  By these cases, it meant big money cases in which there was more than enough in the pot to meet both parties needs, with a surplus left over.

Now the oddity is this, it was the same case which actually coined the phrase I so dislike -

"The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative." (my emphasis).  The Court wasn't approving that term - if anything, it was critical of the concept and its use.

As a result, I was encouraged to have drawn to my attention a case called Robson v. Robson.  Here, the Court of Appeal looked at exactly the phrase used in White v. White and added as follows:
"Confusion will be avoided if resort is had to the precise language of the statute, not any judicial gloss placed upon the words, for example by the introduction of "reasonable requirements" nor, dare I say it, upon need always having to be "generously interpreted". (my emphasis)

I therefore live in hope that the day will come when I can forget this latest judicial gloss and what it might mean for those few very wealthy clients, whose marriages, sadly, have run their course.

Blog Disclaimer: Nothing in blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

No comments:

Post a Comment