Friday, October 16, 2009

Stupefying Legislative Ineptitude

There is an interesting article by Anthony Julius (left) in the Financial Times today, in which he discusses reform of the ancillary relief laws, with reference to the views of Baroness Deech. He says that "reform based purely on making pre-nuptial agreements enforceable – as outlined by Baroness Ruth Deech on Tuesday – is not the way forward". I agree there, although I'm not sure that Baroness Deech is only suggesting that pre-nuptials be made enforceable - I've haven't read her speech, but I understood that she is also proposing a European-style community property regime.

Julius then goes on to discuss three objections to the current system that allows courts to disregard pre-nuptials: that it violates the principle of contract-making autonomy, that it reflects a larger judicial unfairness and that it has the vice of judicial unpredictability. It is when he discusses the third of these that the article becomes most interesting. Julius points out that in 1984 Parliament abolished the requirement that the court attempt to place the parties in the financial position in which they would have been if the marriage had not broken down. He agrees that that was, of course, unworkable but, he says, "in an act of stupefying legislative ineptitude, no other requirement was substituted", with the result that "judges have been left to fill the legislative gap, making things up as they go along, inventing rules to govern the division of matrimonial assets, or “finding” them in the factors listed in the Matrimonial Causes Act". Sometimes, he says, they merely rely upon the 'aspirational quality' of "fairness". As a result, it has "become almost impossible, when advising a divorcing husband or wife, to predict what the courts would decide in their case". Yes, I think that pretty well sums it up.

What is required, Julius suggests, "is legislative reform of the criteria for asset and income division on divorce", although he does not indicate what form that reform should take. What overarching 'requirement' (or 'duty', to use the original wording of the MCA) should the court be given? I have to say that it is hard to think of a requirement that would fit every case and that would not be as bland or unpredictable as "fairness" - anything more specific would surely seriously fetter the discretion of the court. Or should that discretion be (largely) taken away by something like the community property rule that Baroness Deech is proposing?

Whatever the answer, let us hope at least that the addition of another powerful voice to the debate will help to encourage Parliament to finally grasp the nettle and deal with this matter that affects so many lives.

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