A formula for certainty

A universal one-size-fits-all formula to calculate financial settlements on divorce has been a sort of 'holy grail' for divorce lawyers for many years. Such a formula would not only make it much easier to advise, it would also create certainty instead of the unpredictability of the present discretionary system. One of the latest attempts to design a formula (or formulae) comes from David Hodson, the well-known (at least in family law circles) writer, lecturer, solicitor and Deputy District Judge, and is published in this month's Family Law. As Hodson sensibly points out, however, formulae should not necessarily replace the law to produce binding outcomes (one only has to look at the child support formula to see how such a rigid approach can produce wholly unfair outcomes in certain circumstances), but rather be used to help parties reach a settlement.

Hodson proposes two formulae, one to calculate the capital settlement, and one to calculate spousal maintenance. The capital formula essentially adds up all capital assets of the marriage, deducts excluded assets that should belong to one party and divides the balance by two, to reach a 'preliminary outcome', which is then checked against any other relevant factors in the case, such as the particular needs of the parties. The spousal maintenance formula essentially adds the net income of both parties, deducts child expenses (to calculate the available income for the parties themselves) and divides the balance by two, with the payer paying that sum, less the other party's net income - Hodson says he has successfully used this formula in recent mediations. With each formula, Hodson lists some of the possible reasons to depart from the formula.

As one would expect from someone who has obviously spent much time on the subject, Hodson is clearly enthusiastic about the use of formulae: "I cannot accept", he says, "that save for a minority of cases we are unable to devise a formula for the majority of family law finance cases", and he makes the excellent point that they would be particularly helpful for parties of more modest means, who cannot afford to use our current discretionary process - he suggests that they be available to all, on the internet. He proposes that Resolution should set up a working party to consider how this can be set up. I wholeheartedly agree.