Thursday, 5 July 2012

Austin Kemp calls for........

My late mother had a rather odd ambition in life - she wanted to call for something.  She used to read the newspapers and wonder aloud just how it was that public figures could "call for..." something or other.  She always fancied having a go herself.  You know the sort of thing, I'm sure - "today the Archbishop of Canterbury called for...a ban on green bin bags," or whatever.  Sadly , so far as I am aware, my mother never quite fulfilled her ambition.  I hope to do a little better.

Last week, the Chair of the Family Bar Council, Nick Cusworth QC, called for reform to divorce law.  You can read about it here:

Nick Cusworth QC

Well today, Austin Kemp echoes his call for wide ranging modernisation of the Matrimonial Causes Act 1973 to give divorcing parties more certainty about what they can expect in terms of financial orders.

Perfect justice?  Perfect confusion!

There are certain legal terms I deeply distrust.  The court's inherent jurisdiction - "I don't know of any authority which specifies that a court can do this but I want this order anyway."  A general equitable remedy - much the same as inherent jurisdiction actually.  A broad discretion - "I can order pretty much what I want and don't have to explain why."

It's that last which I have the greatest problem with.  The judges in the High Court and Court of Appeal seem to love their broad discretion, conferred by the Matrimonial Causes Act, but it makes the issue of how to advise divorcing couples pure misery at times.  What is a party entitled to as their share of the matrimonial assets?  Whatever is fair.  And what is fair?  What the judge on the day thinks is fair.  Well that's a great help, that is.

The right to know what the law prescribes

The philosophy of criminal law is quite instructive here.  The purpose of criminal law is not to punish offenders.  It is to prevent certain unacceptable behaviours from happening in the first place.  So it is of paramount importance that the law should be so clear and unambiguous that anyone can reasonably be expected to understand what it is that they should not be doing.

I don't see why the same shouldn't apply elsewhere.  If the law is uncertain or unclear - and when it comes to finance in divorce, it's all of that - it seems almost to demand that only a judge can decide on what terms a couple separates.  In my view, however, the courts should be the destination of last resort.  To make court hearings unnecessary, it is vital that the present regime is radically reformed to give the clearest possible guidelines and rules to enable parties, with the aid of lawyers if necessary, to work out what each of them should have and what each of them should pay.

Yes, there will be some cases in which one or other of the parties can legitimately feel hard done by.  But there is an old saying, "hard cases make bad law", and it happens to be true.

Community of Property

Nick Cusworth is promoting a law of community of property.  This exists elsewhere in Europe - quite widely actually.  What is says, broadly speaking, is that property I had before I was married belongs to me alone.  Property I acquire through my efforts during the marriage is joint.  Property I acquire after the marriage is over belongs to me alone.  Property inherited by me during the marriage is mine.

Subject to one or two amendments, I think this is perfectly fair and should become the way we do divorce in England and Wales too.  So what are the critical amendments?

Well, firstly, my park bench principle should never be infringed.  If the outcome would leave one party living on a park bench where the other one has surplus resources, that's fundamentally unjust.  So there will have to be a power of the court to make additional provision for one party based on need alone.  Not fairness, not needs generously assessed, because we know where they lead.  Just need.

The second departure is justified by what is referred to as the compensation basis.  Some spouses give up lucrative careers in order to bring up their families.  They allow the other spouse to prioritise their careers instead.  In clear cut cases of this nature, and I emphasise the clear cut aspect, there can be justice in one party being required to continue to pay the other as compensation for losing the chance of that high earning career.

Apart from that, I don't see any inherent unfairness in a community of property regime and I see plenty to complain about in the system we have operated in England and Wales for the last forty years.  Change is long overdue.


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1 comment:

  1. I thoroughly agree with what you say here which is perfect common sense and far more fair than what is currently happening.

    The sad fact seems to be that Family Law is made overly complex and as you say, Judges are given pretty much carte blance to rule what they see fit - despite the consequences which are often far reaching.

    What I also see as being grossly unfair is that judgement can take place and court orders signed reluctantly (usually the injured party has no more funds or strength to fight to appeal stage), then the terms of the order are fixed for many years - often with no clear end date for maintenance payments (or a long stop on this). The remaining option is to vary the order; more cost, uncertaintly, the potential of an upwards variation for the payer and one must of course have sufficient grounds in the first place. So, many find themselves trapped for years.

    I would like to see a truly independent review body of some kind to review unfair or biased judgements without further cost to the injured party and make any necessary adjustments. This would be fairer.

    We currently have so much disparity between what judges are ordering up and down the country, what applies in one case will not in another. I realise all circumstances are different but there are features that apply across the board; number of hours worked, salary, level of earning disparity etc.

    I am sure when any further review takes place we will all see it is just another subtle shade of grey that fails to resolve these issues.

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