Weep for our broken family justice system, by Marilyn Stowe

Photo by Jilbert Ebrahimi on Unsplash

There has been some noise this week about the decision of Moor J to award £400k to a highly qualified lawyer who gave up her career by an agreement with her husband - she would raise the children, her husband would become the family’s high flyer. The sum was awarded by the Judge on their divorce, for ‘relationship generated disadvantage’ in addition to a capital sum dividing their substantial capital assets. ”Giving up a career is a choice not a sacrifice’ argued Libby Purves forcefully in The Times.

I sighed. We appear to have forgotten that in all cases, the law does not divide assets 50/50 by wielding a knife and fork. Instead, there is an entire body of law, statute and case law, which requires a search for fairness between the parties, and that fairness is achieved by a nuanced application of the law, depending on the specific facts of every single case.

No new floodgates

The law Moor J applied to his decision has been in existence for 14 years. When it first came to light, it opened no new floodgates, and it will not now. It has nothing to do with individual choices, or sacrifice, and nothing to do with modern living in the 21st Century. Instead, it is designed to ensure that a wife (or husband, as gender is irrelevant) does not suffer a ‘double whammy’ in the financial distribution of the couple’s assets, which includes consideration as to how to deal with the substantial income of one party, as well as division of the capital. Fairness in law requires that the disadvantage of having to start from scratch after the breakdown of the marriage because of the joint decision of the parties for one to raise the children while the other continues to earn at a high level, should not be ignored. Rather, where such a disadvantage can clearly be demonstrated, i.e. that the wife really did give up a significant chance of earning a high income herself, that loss should be compensated. And further, in doing so, in dividing the assets, there should be no element of double counting. All high hurdles to cross. And in practice, these case are rare.

I well remember the 2006 House of Lords decision in Miller v Miller; McFarlane v McFarlane when this principle was first spelled out.

Not only because it was one of the most important, seminal, judgments ever, that every family lawyer should learn by heart,  but because I went on BBC TV News on the day judgment was handed down and said I thought the House of Lords was wrong. Reader you may well gasp, but I did.

I publicly disagreed with their Lordships, including Lord Nichols, (who had also handed down judgment in the leading matrimonial finance case of White v White in 2000,) and Lady Hale, lately the President of our Supreme Court.

I sympathised instead with Mr Alan Miller, who had pursued his case all the way to this grandest court in the land, so aggrieved was he after a short marriage at having to pay his 30 something wife of about 15 months, some £5m in the divorce;- a fortune then and it still is, fourteen years later.

I said it was far too much to pay her for such a short marriage, despite his considerable wealth. The substance of the judgment was obviously not an issue. Given its content I could hardly take issue with the intellectual brilliance of its authors. It was the application of their carefully stated principles to his case that I thought wrong.

Did the House of Lords do any more than cast a peremptory bird’s eye view over the sum awarded by the lower court? Having ensured the payment ‘was somewhere in the bracket’ as lawyers like to say, even if it was at the top end, it was left at that.

Having been denied an appeal hearing from their Lordships to an even grander court in Europe, Mr Miller gave up and married Mrs Gina Miller whose own litigation has gained even greater fame, having taking on the Government over Brexit twice over. She certainly had her victories in the Supreme Court, but from a personal perspective ultimately neither of them came out winners for all their time and trouble.

Where they undoubtedly succeeded was by causing judgments to be produced in all their cases that, I hope, will continue to be dissected long into the future.

Hers may well last longer than his.

Fair asset distribution

The Miller matrimonial finance case was heard together with that of McFarlane, as the facts of both cases touched on the interpretation of the principles first laid down in White v White. Between 2000 and 2006 many hundreds of cases were being heard across the country and many issues were arising in relation to what constituted fair asset distribution between the parties. Further clarification and amplification was required and it was decided these cases were going to be the ones to provide it.

In the Miller/McFarlane judgment, three basic principles emerged to be met in order to provide fairness; - needs (to be generously interpreted), sharing of ‘the fruits of the marital partnership’, and ‘compensation for relationship- generated disadvantage.’ The overall objective being to give each party an equal start as possible, as individuals facing a future alone.

For those interested, other issues considered In the lengthy judgment include conduct during the marriage and its relevance in financial settlements, consideration of marital contributions, ongoing maintenance payments as a form of compensation when a clean break would be appropriate but there was insufficient capital to fund it, legitimate expectation of the parties, standard of living and the treatment of assets such as business assets, assets brought into the marriage by one party, and assets generated solely by the efforts of one party during the marriage.

All complex stuff. And if the relationship generated disadvantage argument raised eyebrows at the time, all jurists were at pains to argue it was rarely going to apply, and floodgates were not going to open. As indeed transpired.

This week’s case is a one off arising out of a statement of law 14 years old. So I sighed.  But what made me sigh most of all, is the inherent belief that assets should be divided 50/50 perhaps by a judicial knife and fork. Most people seem to think that’s how the law works. They have no clue how nuanced it really is and furthermore nuance applies to every case, not just the very rich. In fact where income and assets are limited, arguably much more so, each case depending on its own particular facts.

But how do people find out what applies to their case? How their respective needs can be fairly met?

The knife and fork

Government has more or less stopped legal aid in matrimonial finance cases. Very many courts have closed across the country. There is no free legal advice readily available and in the few rusty old courts which are still open the government is pushing well-meaning non-qualified ‘hand holders’ to voluntarily give litigants a nice little pat on the back as they face a courtroom with no idea what to do next, and worse, what to ask for.

Couples are instead heavily encouraged to avoid litigation, to mediate, to negotiate but there is no one to advise them how to settle, only that they should settle. And they have failed if they can’t. So despairingly, deprived of legal knowledge, they reach for the knife and fork.

We have indeed reached such a low in this country.

And as houses come to be sold because assets are being divided wrongly on a 50/50 basis, houses that need never be sold if our nuanced law was applied, maintenance rights are unwittingly abandoned and single parent families are thrown onto the state, compare and contrast the careful, terrific judgments of their Lordships, and rather than railing at legal precedent; - weep for our broken family justice system.